The 7th U.S. Circuit Court of Appeals has affirmed the ruling of a district court, that a state high school athletic association was within its rights to the market the broadcast rights of its post-season tournaments to the highest bidder, even if that meant excluding other media, such as newspapers.
In so ruling, the panel of judges determined that the Wisconsin Interscholastic Athletic Association’s exclusive contract “was not a gag order or prior restraint on speech about government activities. The media were free to talk and write about the events to their hearts’ content. What they could not do was to appropriate the entertainment product that the governing body had created without paying for it. The governing body had the right to package and distribute its performance; nothing in the First Amendment conferred on the media affirmative right to broadcast entire performances.”
The Impetus impetus for the dispute may have occurred in 2005 when WIAA contracted with American-HiFi, a video production company, to stream its tournament events online. Under the contract, American-HiFi had an exclusive right to stream nearly all WIAA tournament games. If American-HiFi elected not to stream a game, other broadcasters could do so after obtaining permission and paying a fee. Notably, the exclusive broadcast agreement between American-HiFi and WIAA concerned entire game transmissions. It did not prohibit media coverage, photography, or interviews before or after games. Private media could also broadcast up to two minutes of a game, or write or blog about it as they see fit, so long as they did not engage in “play-by-play” transmission.
Ignoring that aforementioned policy, newspapers owned by Gannett Co., Inc., decided to stream four WIAA tournament games without either obtaining consent, or paying the fee. In response, WIAA filed this declaratory judgment action in state court asserting its right to grant exclusive licenses. After Gannett removed the case to federal court, the district court entered summary judgment in favor of WIAA.
On appeal, the panel wrote that “the implications of Gannett’s arguments “are staggering: if it is correct, then no state actor may ever earn revenue from something that the press might want to broadcast in its entirety. That is not correct. Gannett’s theory that coverage and broadcast are identical is both analytically flawed and foreclosed. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S. Ct. 2849, 53 L. Ed. 2d 965 (1977).
“Simply put, streaming or broadcasting an event is not the same thing as reporting on or describing it. In addition, Gannett overlooks the importance of the distinction between state-as-regulator and state-as- proprietor, which in turn leads it to fail to appreciate the fact that tournament games are a performance product of WIAA, which it has the right to control. Thus, because the exclusive agreements between WIAA and American-HiFi are otherwise not contested, and we find no reason in the First Amendment to change them, we affirm the district court’s judgment for WIAA.”
Wisconsin Interscholastic Athletic Association, and American-Hifi, Inc. v. Gannett Co., Inc., and Wisconsin Newspaper Association; 7th Cir.; No. 10-2627, 2011 U.S. App. LEXIS 17684; 8/24/11.
Attorneys of Record: (for plaintiffs – Appellees) John S. Skilton, Attorney, PERKINS COIE, Madison, WI. (for defendant) Robert J. Dreps, Attorney, GODFREY & KAHN, Madison, WI.; Monica Santa Maria, Attorney, GODFREY & KAHN, Madison, WI.
