ASNE joins important brief on credentialing issue

• By: ASNE staff
• On: 10/21/2010 13:58:00
• In: Amicus briefs

RESTON, Va. — ASNE joined several media companies and organizations on an amicus brief filed in support of the Gannett Co., Inc. and the Wisconsin Newspaper Association, last week, in what may become a landmark case affecting the future of the webcasting of sporting and other live events. The case could have a major impact on the breadth of credentialing restrictions generally -- a key issue ASNE has focused on the past several years.

Gannett and WNA found themselves in court after the Wisconsin Interscholastic Athletic Association entered into a 10-year exclusive agreement with When We Were Young Productions for the right to stream all WIAA high school sporting events. Because WWWY streamed only a small percentage of the events -- according to Gannett, it was only 3.7 percent in 2008-09 -- Gannett newspaper websites in the state began to stream high school sports as well. That violated WIAA's credentials restrictions, which reserved to WWWY the right to distribute live information about a game in text, audio or video format.

WIAA took issue with Gannett's unilateral decision and sought a rights fee of up to $1,250 for every game streamed. Both Gannett and the WNA balked at this demand, which also would have required webcasters to turn over their final product to WWWY for its future use. When negotiations broke down, WIAA filed a lawsuit against Gannett and the WNA in the U.S. District Court for the District of Wisconsin, seeking a declaratory judgment that the newspapers could not stream these events. Specifically, the WIAA's complaint asked the court to rule that the WIAA owns the rights to “any transmission, internet stream, photo, image, film, videotape, [or] drawing . . . of any game,” as well as “[any] writing . . . or other depiction or description of any game".

The District Court ruled for the WIAA holding that the case was about commercial interests, not free speech. Having made this distinction, the court also ruled that the WIAA could take virtually any steps necessary to protect its commercial interests. This broad holding affects the future of streaming all manner of sports events at the local, high school, college and professional levels, and perhaps other forms of entertainment as well. As a result, ASNE believes that it is imperative that this verdict be overturned.

ASNE joined the Chicago Tribune Company, the E.W. Scripps Company, GateHouse Media, Hearst Corporation, the Illinois Press Association, the Journal Broadcast Group, the Journal Sentinel, Inc., Lee Enterprises, the McClatchy Company, the National Press Photographers Association, the Newspaper Association of America, the Online News Association, Sun Times Media, and The Washington Post on the brief seeking to overturn the District Court decision.

The brief makes the following arguments:

• The District Court erred in holding that Gannett's First Amendment rights were diminished because these are sporting events, not political events. The WIAA is a government entity that is playing favorites in terms of coverage. Sports are an important part of every local community and Gannett and others cannot be restricted from fully covering these events unless the WIAA has a good reason for instituting such restrictions.
• The WIAA is essentially engaging in a licensing process that requires pre-authorization to webcast sporting events, yet it has not created or instituted any objective standards for obtaining a license. As a result, news organizations may self-censor to gain approval to cover these events, and there isn't an appeal process in the event of an adverse decision.
• WIAA sporting events occur in a designated public forum, so the WIAA cannot exclude the media from an event without the highest justification. Yet WIAA has not offered any justification for its exclusivity provisions.

Restrictive credentialing in connection with sporting events isn't a new issue. However, this is the first time a lawsuit on the issue has gone to a U.S. Court of Appeals, so there is plenty at stake for ASNE members. ASNE considers the issue of restrictive sports credentialing one of our top legal priorities and we remain dedicated to ensuring that our members can engage in the fullest coverage of sporting events possible.

Kevin Goldberg is a lawyer for Fletcher, Heald & Hildreth and is the legal counsel to ASNE. You can find him blogging on CommLawBlog, published by his firm.