Can The University Of Kentucky Ban Student Newspaper From Being Distributed At Its Stadium?

from the hello-first-amendment dept

Mon, Oct 18th 2010 4:10pm — Mike Masnick

College sports have become a big business. That's no secret. We see it all the time, and at times that's used to stifle elements of free speech, such as in making fan-created t-shirts and such illegal. Now it's going even further. Romenesko points us to the news that the University of Kentucky, a state-funded university, has banned the distribution of a free student newspaper at the University's Commonwealth Stadium before football games. Apparently, UK has a marketing contract with sports licensing giant IMG, which they believe gives IMG a monopoly on any media efforts around the stadium. Of course, plenty of folks are pointing out that this is a pretty clear First Amendment problem. It's a public government-owned entity, forbidding the distribution of speech. The contract with IMG is meaningless as you can't contract away others' free speech rights. It sounds like folks are gearing up for a legal challenge here, which should be worth following.

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Filed Under: contracts, free speech, journalism, university of kentucky
Companies: img

25 Comments

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out_of_the_blue, 18 Oct 2010 @ 4:20pm

College sports are not business. You go wrong first sentence.
Sports are entertainment, and they want absolute monopoly. Since all the money is on the side of monopoly, odds are the student newspaper will cave.
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Nicolas Martin (profile), 18 Oct 2010 @ 6:58pm

No the only UK speech problem
The UK Med Center requires that its doctors agree to not publicly criticize the hospital or other doctors, or face termination.
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MeRL, 18 Oct 2010 @ 7:17pm

I hear a lot of talk about copyright infringement here on tech dirt some interesting some frivolous.

but..

Can The University Of Kentucky Ban Student Newspaper From Being Distributed At Its Stadium?
HELL NO fight the good fight.
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Chris-Mouse (profile), 18 Oct 2010 @ 7:59pm

Like it or not, I think the newspaper would have a hard time winning this battle. The first amendment does give you the right to speak your mind, but nowhere does it obligate anyone to provide you with a forum in which to do so. In this case, UK is not putting any restrictions on what speech is in the newspaper, they're simply saying you cannot distribute the newspaper *at this location*. The publishers are perfectly free to go elsewhere to distribute newspapers.
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btr1701 (profile), 18 Oct 2010 @ 8:44pm

Re: Speech
> UK is not putting any restrictions on what speech is in the newspaper,
> they're simply saying you cannot distribute the newspaper *at this
> location*. The publishers are perfectly free to go elsewhere to
> distribute newspapers.

So if the president was giving a speech and the police banned all protesters anywhere near the site of the speech, that would be okay because they're not saying the protesters can't speak, they just can't speak anywhere near the president; they're free to go somewhere else and speak... would that be legal?

[Hint: there's about 200+ years of Supreme Court 1st Amendment jurisprudence that says it would not be legal.]
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Urza9814, 18 Oct 2010 @ 9:59pm

Getting technical...
Well, _technically_ the first amendment states:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Key words there are "Congress shall make no law". Everyone else can do what they want, under the first amendment.

Of course, a huge amount of supreme court case law has dramatically altered this, so that is applies to pretty much any government entity, at any time, in any way. I know that here at Penn State, they have established "free speech zones" on campus, but if you actually ask them about it, they'll tell you that they can't limit your speech anywhere on campus, those zones are just where such expression is _encouraged_. But anyway, I'm getting off topic. Point is, if they sued, they would probably win.

@Chris-Mouse: Tinker v. Des Moines would disagree with you there...as would several other supreme court rulings. If it's private property, sure, they could boot the students for trespassing. But it's not, it's a public school.
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bob, 18 Oct 2010 @ 11:35pm

Re: Re: Speech
That's why we have free speech areas that are blocks away from where rallies for the major political parties are held, right?
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btr1701 (profile), 19 Oct 2010 @ 3:38am

Re: Re: Re: Speech
> That's why we have free speech areas that are blocks away from
> where rallies for the major political parties are held, right?

Not any more. Those were common back in the 1990s and the ACLU sued the crap out of local and federal law enforcement. The courts have ruled that absent a specific threat of violence protesters must be treated just like the general public and anywhere mom, dad and the kids can go, a protester can go.
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abc gum, 19 Oct 2010 @ 4:53am

Re:
Interesting. Maybe they could do something useful like stop those ads from being placed upon everyones windshield.
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FarSide (profile), 19 Oct 2010 @ 5:49am

Re: Re: Re: Re: Speech
That didn't seem right. 1 quick google later, and according to Wikipedia (which is never wrong):
Free speech zones were used in Boston at the 2004 Democratic National Convention.
...
Free speech zones were also used in New York City at the 2004 Republican National Convention.
And more recently, from Wed Aug 06, 2008, Federal Judge Upholds Denver Convention Protest Zone

Of course it's a whole lot of bull anyhow - the idea that you can be blocked from saying what you want is valid on private property (I don't need to let anyone who is in my house to say whatever they want, I can kick em out), but allowing a gov't entity to do so in any way is supremely disturbing.
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Kingster (profile), 19 Oct 2010 @ 5:52am

Maybe the students should move to Canada, so they can have their freedom of speech... Canada students can't be sanctioned for Facebook comments
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Gabriel Tane (profile), 19 Oct 2010 @ 6:13am

Re: College sports are not business. You go wrong first sentence.
Umm... wait, what??

Make up your mind... are they making money or not? If they are making money, they are a business in the sense of the word that Mike was using. Are the a corporation with an office in NYC's financial district? Probably not. But they are being managed and marketed in such a way as to make money... like a business.

And the student newspaper won't have to cave because it's a case of, as Mike put it, "a public government-owned entity, forbidding the distribution of speech." While I disagree with his use of a comma in that sentence, the gist of the sentence is spot on.
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nasch (profile), 19 Oct 2010 @ 8:29am

Re: Re: Speech
It matters why they're doing it too. If they're making some political statement relevant to the football game, I would expect that would make the 1st Amendment claim much stronger than if it's just because there will be a lot of people there so they can distribute more newspapers. It doesn't seem like a clear cut case to me. Mike - keep us informed on this one!
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Chris-Mouse (profile), 19 Oct 2010 @ 8:55am

> UK is not putting any restrictions on what speech is in the newspaper,
> they're simply saying you cannot distribute the newspaper *at this
> location*. The publishers are perfectly free to go elsewhere to
> distribute newspapers.
So if the president was giving a speech and the police banned all protesters anywhere near the site of the speech, that would be okay because they're not saying the protesters can't speak, they just can't speak anywhere near the president; they're free to go somewhere else and speak... would that be legal?
Well, lets take your argument to the other extreme. Does the fact that UK is a government institution mean that the university cannot prevent people from distributing newspapers in lecture halls during the lectures? Freedom pf speech and freedom of the press are not, and never have been absolute. One of the things that has to be considered in deciding on the legality of any restrictions is the effect the restriction has on the effect of the speech. Restricting protesters to an area so far away from the target of the protest that the targeted individuals have no way of even knowing the protest is in progress kind of makes the protesting pointless. Banning distribution of a newspaper from a small portion of the campus merely means that the total circulation of the paper will be somewhat lessened. It does not make it impossible, or even particularly difficult for the publisher to reach the majority of the campus population, they simply won't have them all grouped together in such a convenient venue.
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Christopher (profile), 19 Oct 2010 @ 5:48pm

Re: No the only UK speech problem
And if the doctors wanted to take that to court as a First Amendment violation, they would win.
There are a LOT of things that businesses try to 'sneak' into agreements that are BLATANTLY illegal.
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Christopher (profile), 19 Oct 2010 @ 5:56pm

Re: Getting technical...
Actually, no, they cannot. The Right to Free Speech was stated by our Founding Fathers MANY MANY times to mean that NO ONE could interfere with another person's right to free speech.... whether on pubic OR PRIVATE property.
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btr1701 (profile), 19 Oct 2010 @ 7:34pm

Re: Re: Re: Re: Re: Speech
> 1 quick google later, and according to Wikipedia...

That's what you get for trusting Wikipedia instead of finding out the full facts. Sure there were protest areas set up at both conventions in 2004, but protesters weren't required to *only* protest there or face punishment, as illustrated by the fact that there were plenty of protests outside those special areas and the protesters were not arrested or sanctioned for doing it.

> And more recently, from Wed Aug 06, 2008, Federal Judge
> Upholds Denver Convention Protest Zone

Again, the protest area was provided as a courtesy at the Denver site but protesters were not required to protest only in that area. It was actually a carve-out of the secure perimeter around the convention center. The protesters were mad that the secure perimeter was so vast that they couldn't get close enough to be heard by the delegates. Even though the court had already approved the Secret Service and Denver PD perimeter as constitutional, they went the extra mile and carved out a special area into the secure perimeter which allowed the protesters to get closer than they would have otherwise. It was something law enforcement didn't have to do and the protesters weren't required to use it.
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btr1701 (profile), 19 Oct 2010 @ 7:36pm

Re: Re: Re: Speech
> It matters why they're doing it too. If they're making some political
> statement relevant to the football game, I would expect that would
> make the 1st Amendment claim much stronger

Actually, that would make the state's actions even more suspect because that would mean the state is picking and choosing which kind of speech and which messages are more important and more deserving of protection than others.

Content-based restrictions on speech are almost never upheld.
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btr1701 (profile), 19 Oct 2010 @ 7:40pm

Re: Re: Getting technical...
> The Right to Free Speech was stated by our Founding Fathers
> MANY MANY times to mean that NO ONE could interfere with
> another person's right to free speech.... whether on pubic OR
> PRIVATE property.

Baloney. If you walk up my driveway and stand on my front lawn and start chanting about your personal issues, I can kick you the hell off my property and infringe on your free speech rights all I want.

If I'm having a party and you start spouting off about politics and annoying the rest of my guests, I can kick you out the door and if you refuse to leave or try and come back, I can have you arrested for trespassing. Nothing in the 1st Amendment would prevent that from happening.
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btr1701 (profile), 19 Oct 2010 @ 7:44pm

Re: Speech
What you're referring to are "reasonable time, place, and manner restrictions" and the court cases which have allowed such restrictions to stand (i.e., banning the use of amplified sound in residential neighborhoods) all require there to be a compelling state interest served by the restriction in order for the restriction to be valid. And while I'm sure the university believes it to be compelling, I don't recall the courts ever recognizing "because we want to make more money" as a valid compelling state interest-- at least not compelling enough to override the free speech rights of the citizens.
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nasch (profile), 20 Oct 2010 @ 8:36am

Re: Re: Re: Re: Speech
the state is picking and choosing which kind of speech and which messages are more important and more deserving of protection than others.

The courts do that all the time. Political speech gets far more protection than commercial speech, for example.

Content-based restrictions on speech are almost never upheld.

What you say cannot enter into it (ie whether anybody agrees with your speech or not). The category of speech absolutely does.
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Beth Carter, 20 Oct 2010 @ 4:40pm

Speech
I believe this is not a matter of free speech as much as this school has the right to distribute at their own stadium.
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Victoria Delane, 15 Mar 2011 @ 1:20am

Re: Speech
Couldn't agree more. It is a college newspaper so what is the problem with it being distributed at their school's stadium when they back UK full force? It is all silly really.
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Ky Cutie Pie, 15 Mar 2011 @ 1:26am

Re:
According to the contract, UK�s deal with IMG is worth $80 million and grants the company exclusive advertising and media rights.

http://kykernel.com/2010/10/14/uk-stops-kernel-distribution-at-stadium/
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securities law, 27 Oct 2011 @ 6:15am

freedom of expression is guaranteed, but not absolute
so the trusts between parties have been broken? sour deals. too bad
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