Federal appeals court ruling preserves WIAA’s right to control live streaming of sports events

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 26, 2011 – The Wisconsin Interscholastic Athletic Association’s (WIAA) exclusive broadcasting agreements for internet streaming of sporting events do not violate the First Amendment, the U.S. Court of Appeals for the Seventh Circuit recently concluded.

The WIAA regulates the athletic activities of 506 public and private high schools. All public high schools are members of the WIAA, which contracted with production company (American-HiFi) to stream tournament events online through the WIAA’s network, WIAA.tv. Other broadcasters must obtain permission from American-HiFi to stream tournament events and pay the WIAA a fee.

However, a newspaper in Appleton streamed four WIAA playoff football games without permission and without paying a fee. The WIAA sued the Appleton newspaper’s parent company, Gannet Co. Inc., and the Wisconsin Newspaper Association, seeking a declaratory judgment that the WIAA may grant exclusive licenses to broadcast high school sporting events. The case was later removed to federal court.

Gannett argued that the WIAA, as a state actor, violates the First Amendment by entering into exclusive contracts for the purpose of broadcasting entire events to raise revenue. Specifically, Garnett argued that the WIAA’s policies on broadcasting threaten the right of the press to cover school sporting events.

But in Wisconsin Interscholastic Athletic Association v. Gannett Co. Inc., No. 10-2627 (Aug. 24, 2011), a three-judge panel for the Seventh Circuit Court of Appeals ruled in favor of the WIAA.

“The media are free under the policy to talk and write about the events to their hearts’ content,” wrote Judge Diane Wood. “What they cannot do is to appropriate the entertainment product that WIAA has created without paying for it.”

The appeals panel explained that the WIAA’s purpose is to govern, regulate, and control high school sports, and promote the ideals of member schools. Thus, it has a right to control the broadcasting content and viewpoint of sporting event “performances” through exclusive contracts.

“What is important for purposes of the First Amendment is that the government is sending a message, which can come by funding a group or project, sponsoring an event or performance, or by selecting and editing content,” Judge Wood Wrote. “It makes no difference whether the state conveys this message directly or instead ‘chooses to employ private speakers to transmit its message.’”

The panel clarified that broadcasting “entire acts” is different from reporting on an event. “No one is telling the press what to say about the event,” Judge Wood noted. “The exclusive streaming provisions of the [WIAA] Media Policies do not censor or regulate the content of such coverage at all.”

Finally, the panel noted the “broader implications” of Garnett’s argument, noting that although the public and the media often have the right to attend public proceedings like trials, “the Supreme Court has not yet recognized any corollary right guaranteed by the First Amendment entitling the media to record, let along broadcast live, what happens at the proceeding.”