A federal judge from the Western District of Wisconsin has ruled that the Wisconsin Interscholastic Athletic Association did not violate the First and/or Fourteenth Amendment rights of media company Gannett Co., Inc. and the Wisconsin Newspaper Association, Inc. when it sold an exclusive license to stream certain WIAA-sponsored tournament events over the Internet.
Among the reasons that the court found for the WIAA was that the events were not “public forums” and that the media was free to report on the events in other ways, such as print journalism.
The Wisconsin Interscholastic Athletic Association is a nonprofit organization that organizes, develops, directs and controls high school interscholastic athletic programs and sponsors tournaments. Members of the WIAA include 506 public and private high schools and 117 junior high and middle schools.
Gannett Co., Inc., meanwhile, publishes newspapers across the United States, including 10 daily newspapers and 19 non-daily newspapers in Wisconsin. The Wisconsin Newspaper Association, Inc. is a group of newspapers in Wisconsin that reports frequently on high school athletics, including tournaments sponsored by WIAA.
Beginning in the 1980s, the WIAA had an exclusive contract with Quincy Newspapers, Inc. to broadcast basketball tournaments and hockey finals. In 2004, Quincy reduced its payment from $140,000 a year to $40,000 a year. As a result, the WIAA began to look for other sources of revenue. The WIAA asked its existing contractual partners whether they might be interested in broadcasting additional events, but all declined.
In May 2005, the WIAA entered into a 10-year contract with American Hi-Fi, Inc. for the production and distribution of “broadcast quality” video of the WIAA athletic events through all physical, electronic and broadcast media, including the Internet. At that time, no other media or production company had expressed interest in transmitting WIAA’s games over the Internet.
The impetus for the litigation was a decision by The Post-Crescent, a newspaper published in Appleton, Wisconsin by the Gannett chain, to continue to transmit several WIAA-sponsored tournament games over the Internet, without the consent of WIAA.
When the WIAA contacted Gannett and requested that it remove the unauthorized games from its web site and pay the associated rights fee, the company balked.
Gannett and the WNA ultimately alleged that their Constitutional rights were being violated.
The association sought a declaratory judgment that it has the right to control the live streaming and play-by-play of WIAA-sponsored tournament games over the Internet, to grant licenses for such transmission and to require payment for receiving a license.
“Ultimately, this is a case about commerce, not the right to a free press,” wrote the court. “The exclusive agreement that the WIAA has does not violate the First or Fourteenth Amendment because it poses no threat to the rights and values embodied in those Constitutional provisions. The events, sponsored by the WIAA are not public forums. The principal reason WIAA granted an exclusive license to stream its games over the Internet is not to promote discourse, but to create and grow an additional source of revenue. 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. Moreover, the public does not lose meaningful access to these games under the plaintiffs’ agreement because other media companies are permitted to stream any tournament game American Hi-Fi declines to produce. Even with respect to those games for which American Hi-Fi holds exclusive rights, the defendants remain free to (1) publish stories on the games, (2) express opinions about them and (3) offer limited live coverage. While WIAA has limited the defendants’ ability to use its tournament events to generate advertising dollars on other companies’ websites, the Constitution does not require the government to assist private entities in making a profit.”
Wisconsin interscholastic athletic association and American-HIFI, INC., v. Gannett CO., INC. and Wisconsin Newspaper Association, INC.; W.D. Wis.; 09-cv-155-wmc, 2010 U.S. Dist. LEXIS 55137; 6/3/10
Attorneys of Record: (for plaintiff) Gerald M O’Brien, LEAD ATTORNEY, Anderson O’Brien Bertz Skrenes & Golla, Stevens Point, WI; Jeff J Bowen, Sarah C. Walkenhorst, LEAD ATTORNEYS, John S. Skilton, Perkins Coie LLP, Madison, WI; Autumn Nero, Perkins Coie LLP, Chicago, IL; Jennifer Susan Walther, Mawicke & Goisman, S.C., Milwaukee, WI. (for remaining plaintiffs) Jeff J Bowen, Sarah C. Walkenhorst, LEAD ATTORNEYS, John S. Skilton, Perkins Coie LLP, Madison, WI; Autumn Nero, Perkins Coie LLP, Chicago, IL. (for defendants) Robert J Dreps, LEAD ATTORNEY, Monica Santa Maria, Godfrey & Kahn, S.C., Madison, WI. (for remaining defendants) Gerald M O’Brien, LEAD ATTORNEY, Anderson O’Brien Bertz Skrenes & Golla, Stevens Point, WI; Jeff J Bowen, Sarah C. Walkenhorst, LEAD ATTORNEYS, John S. Skilton, Perkins Coie LLP, Madison, WI; Jennifer Susan Walther, LEAD ATTORNEY, Mawicke & Goisman, S.C., Milwaukee, WI; Autumn Nero, Perkins Coie LLP, Chicago, IL.
