Judge Says Commerce Outweighs Free Speech Issues When It Comes To Reporting On High School Football

from the say-what-now? dept

Wed, Jun 9th 2010 8:45am — Mike Masnick

Last year, we wrote about how a high school sports association in Wisconsin had sued some newspapers for their reporting on various high school football games, because that reporting included some broadcasting of video during the games. As we noted, in this day and age, when more and more smartphones are able to live broadcast anything the idea of "exclusive broadcasting rights" for any kind of event becomes increasingly ridiculous -- especially when you're talking about the freedom of the press to report on anything news worthy. The league had apparently even gone so far as to send invoices to media organizations that were live-blogging games.

Unfortunately, however, it looks like the judge has ruled against the newspapers, saying that their right to free speech does not trump the league's attempt to make money:

"Ultimately, this is a case about commerce, not the right to a free press," Conley wrote. "WIAA has made a business decision that it will be more lucrative to give one company the rights to broadcast its tournament games, a decision that does not stifle speech or discriminate on the basis of viewpoint."

Now, I can understand the basic thinking behind the ruling, and it is true that the high schools can make decisions on who they let in to games and who they keep out. But it goes a step further to then say that if you did get in and you did record video, that you can't post that video. There's no issue with the high schools or the sports association denying press credentials to future games, or asking the reporters filming the game to leave the premises. But I can't see how they have any right to sue or demand that existing video be taken down.

Furthermore, this is an issue that's only going to become a bigger and more important deal very, very quickly, as smartphones get better and better at broadcasting live video feeds. How long will it be until some enterprising folks send a team of smartphone-equipped "cameramen" to various live sporting events, and do live broadcasts from the stands? I can't wait for the legal fight over that one...

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Filed Under: free speech, live broadcasting, reporting, sports

43 Comments

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ComputerAddict (profile), 9 Jun 2010 @ 8:52am

I Hope the "Team of smartphone-equipped 'cameramen'" Try it on a NFL or MLB game first.
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Anonymous Coward, 9 Jun 2010 @ 8:53am

the legal aspects remain the same. you could record it for yourself, you could take it home and enjoy it, but when you publish it, well, see the judge's ruling.

i have to say mike that you are the master of sour grapes when one of your pet concepts gets shot down in flames.
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Anonymous Coward, 9 Jun 2010 @ 8:55am

Re:
Add "free speech" to the list of things TAM doesn't like.
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Designerfx (profile), 9 Jun 2010 @ 8:56am

commerce has been stretched a million ways
and is the problem with a million lawsuits. seriously. the commerce law is the basis for all of the TSA, it's the basis for trying to tax the internet and ban gambling, p2p legality, etc.

that law is so out of place that it's all the judges have.
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Anonymous Coward, 9 Jun 2010 @ 8:57am

And there you have it: (My) money is more important than (your) free speech.
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Anonymous Coward, 9 Jun 2010 @ 8:57am

Re: Re:
i dont know about this tam person, but i love free speech. but your right to free speech ends at my nose. you dont get unlimited free speech, sorry.
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Anonymous Coward, 9 Jun 2010 @ 8:58am

Re: commerce has been stretched a million ways
Money is more important than free speech. Free speech only applies when big corporations want to contribute arbitrary sums of money to campaign ads. But when it comes to individual free speech and reporting the news, it only applies to the entity that has the largest commercial interest in the matter.
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Anonymous Coward, 9 Jun 2010 @ 8:59am

Re: Re: Re:
Hi TAM. What you meant to say was "your right to free speech ends when I need to end it to make more money."

That means you don't like free speech, sorry. Unsurprising that you lie about that when you also constantly lie about your identity, of course.
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jfgilbert (profile), 9 Jun 2010 @ 9:09am

That is not free speech
I don't agree with the ruling in many ways, but, to be fair, free speech was never about football games. The court did say that this was about commerce, not on the basis of opinion, which means that this case cannot be used as precedent to silence a critic.
And, really, if the press had to spend less time covering pointless sports events, and a little more informing people of things that affect them, we would all be better off.
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PaulT (profile), 9 Jun 2010 @ 9:13am

Re: Re: Re:
"your right to free speech ends at my nose"

Not only are you mixing metaphors (the quote is "your right to swings your fists ends at my nose"), but that makes no sense in the context of the ruling. In other words, your rights are sacred, right up until the point where you start causing me harm.

The judge has basically said that right to free speech is overruled by someone else's desire to make a profit. You can't "record it for yourself, you could take it home and enjoy it" if you're not at the game - that's where *reporting* comes in. What good is freedom of speech if nobody is allowed to hear what you're saying?
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Anonymous Coward, 9 Jun 2010 @ 9:15am

Re: Re: Re: Re:
He's old...his memory is gone and so is sanity.

For more reference see: http://www.techdirt.com/article.php?sid=20100608/0840209733#c214
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iamtheky (profile), 9 Jun 2010 @ 9:19am

"as smartphones get better and better at broadcasting live video feeds"

I believe it is the act that is in question, not the quality of the broadcast; and i somehow dont think "but i stream it off my phone in full 1080p" is going to make a judge rethink the legality of the issue?

I am not sure how this will somehow trump the dollar bills that are broadcast rights.....because of the portability and prevalence of the video recording devices?

Shortly before that ruling you will get to start signing an NDA on your way into the stadium, if I was running it.
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Anonymous Coward, 9 Jun 2010 @ 9:25am

I have not read the ruling yet, but I imagine that this would have been different if the newspapers were not engaging in commercial speech-the newspapers "speak" to make money. If this involved a parent taking video of the game and posting it for his or her family and friends to see, that most likely would be different. Commercial speech is expression that the government is able to regulate more than non-commercial speech usually.
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Hulser (profile), 9 Jun 2010 @ 9:36am

Re: That is not free speech
The court did say that this was about commerce, not on the basis of opinion, which means that this case cannot be used as precedent to silence a critic.

It can't? Why not? It seems very clear to me that if you allow free speech to be stifled for commercial reasons that doesn't happen to relate to silencing a critic, the next logical step would be to do so when silencing a critic. In your scenario, a company could invoke this precent to remove copyrighted material that happens to critisize the company. Heck, why say "could"? TechDirt is full of stories where companies are doing this already. We've already fallen to the bottom of the slippery slope.
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G. Washington, 9 Jun 2010 @ 9:38am

Funny thing...
I don't remember Commerce being one of the rights in either the constitution or the bill of rights... I DO remember freedom of speech being specifically mentioned.

I wonder how much money the judge got for that ruling, after all, commerce is greater than justice.
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Anonymous Coward, 9 Jun 2010 @ 9:43am

Re:
i'd bet you'd be a industry leader too if you did.

while this is about a high school, the crap that NFL, MLB, etc pull is even more so. and it will stay that way until people just stop going to games. if they can't get anyone in the stadiums because of their screwed up rules, well maybe, just maybe, they will value us (the customer, the fan) over business partners.

and maybe a unicorn will stop by my desk with two tickets to paradise.
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Anonymous Coward, 9 Jun 2010 @ 9:53am

It's nice that a judge finally confirmed what we've known to be true, and equally wrong, with the legal system for years.

This is great for cash-strapped school districts who will now explore having to make the choice of buying books or having an on-staff attorney. Also, expect this case to be cited in much bigger cases.
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Lonny Paul (profile), 9 Jun 2010 @ 9:55am

This will get overturned
1st amendment trumps all this crap.
They'll get it overturned.
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Arfnotz, 9 Jun 2010 @ 10:03am

Recording live events
Recording plays in theatres is generally prohibited due to copyright and Equity (actors union) rules. Sports is only slightly dissimilar, it's entertainment to watch it, but the results are considered news. This distinction was hammered out years ago, and thus at the end of every sporting broadcast there's the disclaimer: "The depictions blah blah without the express permission of MLB."

I have no problem with schools, public or private, making the same claims whether with sports or that drama class porduction of "Rent".
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Anonymous Coward, 9 Jun 2010 @ 10:10am

Re: Recording live events
I think that at least public tax funded schools should not be allowed to stifle free speech and news broadcasting. If it's private it's more justifiable, but if it's a publicly funded entity it should be in the public domain.
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ChronoFish (profile), 9 Jun 2010 @ 10:11am

Need more details
My understanding (which I acknowledge is limited) is that images obtained in a public venue is fair-game for rebroadcasting.

If this is the case, then one can see why/how a league like the NFL can control the broadcast.

However - in the case of a public high school, this becomes more problematic. Sure the stadium may "belong" to the school, but if it's a public school then is it not public property? And if it's public property (bought with tax payer money) then the "press" can not be excluded from entry - nor can their recording devices, and certainly they would have the right to rebroadcast - regardless of "exclusivity" rights that the school may assign in a contract (indeed this questions whether the school even has the right to assign such broadcasting "rights").

Of course the school stadium may very well have been paid for without tax-payer money - these details are not known (by me).

These are really questions framed as statements. I would enjoy hearing the discussion around them.

-CF
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FormerAC (profile), 9 Jun 2010 @ 10:25am

Wild Speculation
This is just wild speculation ...

I can see this whole Wisconsin case being a pawn for the NFL. Its not like the NFL has an old, historic franchise there. One with long, strong ties to its community. I can imagine a person with the NFL's interest in mind going to some high school awards banquets in the state. They might introduce a high school league to this guy who thinks it would be a good idea to buy the exclusive rights to broadcast their games. He also knows a great lawyer who can help us out.

Again, wild speculation, but the NFL does want to sell and control everything about the NFL. Its possible ...
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Michael, 9 Jun 2010 @ 10:26am

Re:
The free speech and freedom of the press implications are scary.

How about a large company grants itself exclusive rights to broadcast video of it's campus. Does that mean it is now actionable if someone video tapes the beating of a man on that campus and broadcasts it? We recently had a power station explode in Connecticut - what if the power company had granted exclusive rights to broadcast images of the power station? Does the news coverage violate their IP rights?

What if a satellite snapped an image while the event was running? Is it now a violation for that image to be used? Is there some proximity clause? If you are filming from outside the stadium, do you still have a problem? Can I fly over and take pictures?
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I like It!, 9 Jun 2010 @ 10:35am

What if a satellite snapped an image while the event was running? Is it now a violation for that image to be used?
Google Earth is screwed.
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Jay (profile), 9 Jun 2010 @ 10:35am

STUPID!!!
That has got to be the dumbest thing I've heard...

We are trumping our Amendment rights for commerce?

I sincerely hope the judge takes a look at what was supposed to be upheld in the Constitution at least once a year...
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Anonymous Coward, 9 Jun 2010 @ 10:36am

Maybe it's just lofty expectations of lawyer parents
It's nice that a judge finally confirmed what we've known to be true, and equally wrong, with the legal system for years.

Amerikka offers the best legal system money can buy.

This is great for cash-strapped school districts who will now explore having to make the choice of buying books or having an on-staff attorney. Also, expect this to be cited in other cases, even though I imagine no one asked the basic question-- is your kid was any good at football?
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Anonymous Coward, 9 Jun 2010 @ 10:53am

Re: Re: Recording live events
I agree completely. If WIAA is a commercial entity, a few things need to change.

1.) WIAA shouldn't be receiving tax dollars. They should be self sufficient.

2.) The schools should consider charging a field usage fee that covers upkeep and storage of equipment over the full year. I imagine school fields/tennis courts/tracks/basketball courts were originally built to play "football" and "tennis" and "track" and "Basketball". Events that occur at these venues are often paid for with tax dollars.

If inter-school competitions are now "commercial" in nature, then the School and School District should be able to recover costs from hosting entities such as WIAA to cover upkeep of these facilities.

3.) Admission to these events should be taxed at local sales tax rates. Failure would indicate that the organization is in contempt of paying taxes.

4.) WIAA is indicating they are a For-Profit Corporation. I expect all normal accounting practices and annual reports to be available through the SoS.
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rww, 9 Jun 2010 @ 11:16am

High School game - public school?
Lots of comments, haven't seen the issue that this is a high school game. Is it a public high school game? Does the team get local, state, and federal funding? Does the team benefit from public funding? I think that makes a difference. Unless BOTH teams are from private schools - the public has a right to know. Propertty taxes of the locals buys them the right to know how the game went. IMHO.
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Greg, 9 Jun 2010 @ 11:36am

Re: Re: Re:
Yes, you do get unlimited free speech, up to and including slander, libel and defamation. You might end up paying penalties for slander, libel and defamation, but you can certainly speak it.

No, you do NOT have the right be be heard. Talk all you want, but no one has to listen to you.
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Richard (profile), 9 Jun 2010 @ 11:46am

Re:

I believe it is the act that is in question, not the quality of the broadcast; and i somehow dont think "but i stream it off my phone in full 1080p" is going to make a judge rethink the legality of the issue?

That wasn't the point - the point was that the tech makes this kind of thing more practical and more useful - and therefore the issue will arise more - and if the law is interpreted as this judge did ( which incidentally I believe to be simply wrong - copyright belongs to the photographer - end of story) then it will turn into another pointless game of whack the mole.
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Richard (profile), 9 Jun 2010 @ 11:49am

Re: Recording live events
Recording plays in theatres is generally prohibited due to copyright and Equity (actors union) rules. Sports is only slightly dissimilar,

Sport is completely dissimilar. Plays, films etc have copyright protection because they have been "fixed in a tangible form". The implication of a sports authority claiming copyright is that their events are rigged!
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Anonymous Coward, 9 Jun 2010 @ 12:03pm

Wait.. its PUBLIC HS Football. Now I know equipment funds are normally donations and travel funds are normally covered by fund raisers, but anyone on the damn team who is at all paid is a public servant. The newspaper already PAYS for the teams listed there by being a fine upstanding business and paying its taxes. The schools in question want the newspaper to pay twice? Once for the right to allow the teams to exist in the first place, and another time to report on events the same newspaper already funds so the events can take place in the first place?

I call BS, UTTER BS!!
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Rob, 9 Jun 2010 @ 12:14pm

Public
One could argue that if the game was between public schools on public school ground that one could not profit from such game. Just like the the Government may not copyright material due to the fact it was paid for my public funds. I would say that public school games are public places thus record and rebroadcast to you hearts contents. You paid for it one way or another.
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Overcast (profile), 9 Jun 2010 @ 12:38pm

"Unfortunately, however, it looks like the judge has ruled against the newspapers, saying that their right to free speech does not trump the league's attempt to make money: "

Simple fix - don't report crap on them anymore, refuse to publish the scores even - unless the league pays up.
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Nastybutler77 (profile), 9 Jun 2010 @ 1:02pm

Re: Need more details
"My understanding (which I acknowledge is limited) is that images obtained in a public venue is fair-game for rebroadcasting.

If this is the case, then one can see why/how a league like the NFL can control the broadcast."

While some NFL stadiums are indeed privatly owned, many are built with a significant amount of public funds (Cowboys Stadium total cost $1.3B, public funds used: $325M). So why should the NFL get to put restrictions on what can be reported or recorded when the games are in stadiums funded by the tax payers?
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Sethumme, 9 Jun 2010 @ 1:30pm

An honest question:

How does amateur-filming a high school football game compare to amateur-filming a screening at a movie theater or broadway show? A football game is a live performance. Shouldn't bootleg video of the performance suffer the same restrictions as bootleg video of any other entertainment venue?
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harbingerofdoom (profile), 9 Jun 2010 @ 1:43pm

didnt really read much of the comments so sorry if this point was already covered... but who are we kiddin here. what school district is going to loose money because the news had a report of high school football that included video coverage?

shakespeare was so so right.
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ChronoFish (profile), 9 Jun 2010 @ 1:44pm

Re: Re: Need more details
Excellent point. But do the public funds equate to state ownership or business development?

Probably business development - but if the state maintains a stake in the stadium then that would be much more interesting.

In the school case - if it is a public school - we are probably looking at school property that is really owned (and maintained) by the city/county/state - i.e. "public".
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Anonymous Coward, 9 Jun 2010 @ 2:01pm

Re:
I'm lost. When exactly did Shakespeare pen the words "Foot Meet Mouth"?
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The Groove Tiger (profile), 9 Jun 2010 @ 2:46pm

Re: Re: Re:
It seems that what you're really saying is "your right to free speech ends when my right to punch you in the nose begins."
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The Devil's Coachman (profile), 9 Jun 2010 @ 3:31pm

Wisconsin? Why would any human live there? Cheese?
High school football? Gimme a break. The idiots should be glad anyone even would want to watch that crap. Morons! God will not help them, but mock them, as they deserve.
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Danny, 10 Jun 2010 @ 5:33am

With this being a high school I wouldn't be shocked if this were about trying to limit recuriter access to high school players.
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slander (profile), 13 Jun 2010 @ 12:08am

Re: Re: Re: Re:
I am not free, darn it -- I am, however, relatively inexpensive...
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