By Kathleen A. Kirby & Scott W. Woodworth, Wiley Rein LLP



In recent years, media organizations have been fighting significant battles with any number of sports leagues regarding restrictions imposed by that all-important piece of paper called the credential.  Previously, it seemed that sporting event organizers rarely determined that conditioning access would outweigh the benefits of wide media exposure.  But now, in a digital information age where corporations own the teams, the stadiums and the broadcast, cable and online rights—and many of them have launched their own internet “channels”—sports organizations are attempting to micromanage every aspect, including the way the press can cover the event.

Certainly the credentialing process is being used by big guys like the NFL, NBA, MLB, NCAA and some of the college conferences to restrict media access and to stifle competition from sources other than those affiliated with the sports organization itself.  The legal theories that have been advanced to date to test such restrictions are complex, involving a balancing among First Amendment, antitrust, intellectual property and contract law.  First Amendment challenges present difficulty, because for a journalist to assert a First Amendment right, he or she needs to demonstrate that the party imposing the restriction has some kind of symbiotic reaction to the state.  Tough to overcome when dealing with private entities.  But most media lawyers thought the odds were better when such restrictions involve high school athletic events so closely linked to the taxpayers who pay for public school teams, coaches, equipment and the facilities themselves.

Or maybe not.  In a disappointing decision released earlier this month, a district court judge in Wisconsin ruled that a case involving a challenge to the Wisconsin Interscholastic Athletic Association’s (WIAA) right to grant an exclusive license for internet streaming of certain high school athletic contests is “about commerce, not the right to a free press.”  In Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc., the court held that high school sporting events sponsored by the WIAA are not “public forums,” and thus WIAA’s grant of the exclusive rights to stream certain of its high school sporting events is strictly a private business matter.  The WIAA commenced the action, seeking a broad declaration of its “ownership rights in any transmission, Internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description of any tournament event,” after Gannett, which publishes multiple newspapers and websites in the state, and the Wisconsin Newspaper Association challenged the preferential treatment WIAA affords its exclusive media partners, including through the credentialing process.

Notably, the WIAA stipulated that it was a “state actor” for purposes of analysis under the First Amendment.  Therefore, the court’s decision focused largely on whether the events sponsored by WIAA are “public forums.”  A quick legal lesson—the Supreme Court has set up a classification system for forums that dictate the constitutional protection that applies.  The “traditional public forum” – a street or park, or some other type of public property that has long been used for expressive activity – is entitled to the highest level of constitutional protection.  In public forums, the government or state actor may only enact content-neutral “time, place, and manner” restrictions or content based rules that are “necessary to serve a compelling state interest” and “narrowly drawn to achieve that end.”  “Nonpublic forums,” on the other hand, are government-owned facilities used for private expressive activities but not primarily intended for such use.  If a forum is nonpublic, the government has far more leeway to limit access or impose other restrictions on speech. 

The court found that WIAA invites the public to its members’ games not for the purpose of discourse or fostering debate, but in substantial part to make money.  “When the government acts in such a commercial or proprietary capacity,” the judge wrote, “it weighs strongly against finding that the government has created a public forum or that regulation of speech within that forum is subject to strict scrutiny.”  In the court’s opinion, sporting events have “little expressive content for purposes of the First Amendment, save for entertainment, and, perhaps inspiration,” and the fact that the press can still attend the events, publish stories, offer opinions, and provide limited coverage essentially means that the public suffers no real harm. 

To the contrary, the dangers inherent in the credentialing process are obvious to journalists.  They permit the newsmakers to become the exclusive news providers, because they require news organizations to agree to time and content restrictions as a condition of reporting news from certain sporting events.  When electronic journalists are denied the ability to report on a news or sporting event with their own microphones, cameras and production crews, it disserves the public, which has an interest in the free flow of information and access to events that define our national culture and for which, in some cases, taxpayers are providing the funding.  While some may claim that high school athletics are becoming as commercialized as college and professional sports, there is still something pure and public about a high school basketball game (remember Hoosiers?). 

From our perspective, the argument made by the Wisconsin Newspaper Association and Gannett that “a regulatory system that vests unbridled discretion in its administrators and exclusive media partners over whether to permit or deny expressive activity by journalists at tournament events involving public school students, at public school facilities, supported by public funds” contravenes the First Amendment certainly is compelling.  According to published reports, Gannett and the newspaper association are reviewing the court’s decision and their options, including a possible appeal.