The following is a case law paper that I completed for my Communication Law class at Ohio University. Gracious thanks to Scripps professor Aimee Edmondson for her guidance during my research.
With the invention of the Internet, reporting on sports has expanded far beyond newspapers and magazines and onto the Web. Blogs first began appearing in the late 1990s, and changed the way news organizations presented the news to its readers. In 2003, Myspace was created, followed by Facebook in 2004, and Twitter in 2006. All of these sites fall under the social media category, which has risen in cultural significance during the new millennium. Social media is a defining aspect of the adolescent and young adult generation of Americans.
Since these developments are rather recent and groundbreaking, the governing entities of sports leagues, specifically the National Collegiate Athletic Association (NCAA) must adapt to the changing landscape of how journalists and athletes operate these new technologies. While there have been no cases in the United States federal court system that directly confront the First Amendment conflicts the technologies have created, there has been groundwork laid in the circuit courts, the Supreme Court as well as First Amendment debate that may guide us in determining what stance the Supreme Court would take should such a case present itself to the court.
To set the stage, we can review one instance in which First Amendment rights and copyright law were brought into question. In June 2007, Brian Bennett, a sportswriter for the Louisville, Kentucky Courier-Journal, was stripped of his media credentials and ejected at an NCAA super regional game between the University of Louisville and Oklahoma State University for live blogging during the game. The ejection set off a firestorm of debate as to whether blogging from an athletic event is allowable under the First Amendment.
According to Courier-Journal executive editor Bennie L. Ivory, “It’s clearly a First Amendment issue. This is part of the evolution of how we present the news to our readers…” He went on to accuse the NCAA of “extortion and thuggery” when he learned that representatives from the University of Louisville told Courier-Journal staff members that “if the school did not revoke Bennett’s credential it would jeopardize the school’s chances of hosting a future NCAA baseball event.” (Bozich)
Jon Fleischaker, the attorney for the Courier-Journal, laid down the conflict at hand. “It’s a real question that we’re being deprived of our right to report within the First Amendment from a public facility…The blog wasn’t a simulcast or a recreation of the game. It was an analysis.” (Kenney) It is important to note that when Bennett was granted his media credentials, there were no restrictions related to blogging in the credential, and he never agreed to such stipulations beforehand.
The Courier-Journal did not file suit, and the NCAA loosened its rules on blogging following the negative publicity it received. They now allow the score and time remaining in an athletic contest to be transmitted via blog, but the question still stands: how will blogs and social media stand up against copyright lawsuits from the leagues that have contracts with big-time broadcast companies? Can new social media restrictions by the NCAA and other high-profile sports leagues pass First Amendment scrutiny?
The Bennett case comes down to whether or not his blog posts were in violation of the copyright held by ESPN to broadcast the game live to its audience. The courts have defined blogs as a form of speech, and the First Amendment protects most speech. We can also call blogs “pamphleteers,” which are protected as a part of the press. (Kenney)
In the Bennett case, the NCAA was correct in stating that ESPN had exclusive rights to broadcast the games, and they indeed have the copyrights to the broadcast of the game. This is where the two sides differ in opinion. In an interview with the New York Times, Scott Bearby, then the associate general counsel for the NCAA, said that the conflict “doesn’t really have a First Amendment angle to it” and that the NCAA is absolutely right in wanting to defend its contracts with its broadcast partners. “It’s a logical extension of the rights that have been around for years and years,” Bearby added. Bearby also said that the NCAA has the right to revoke press credentials from any organization that violates these rules, even if another employee of the company that is not credentialed blogs from the stands, or from their couch at home.
The Federal Copyright Act entitles rights holders to a “limited monopoly” over their work. The only stipulation is that the material produced must be copyrightable material, and the alleged copies of this material must be “substantially similar” to the original. (Federal Copyright Act of 1976) In Feist Publications, Inc. v. Rural Telephone Service Co. (1991), the Supreme Court declared that originality is a necessary element of a copyrightable work.
“No one may claim originality as to facts . . . . This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence . . . . [Thus,] [t]he same is true of all facts – scientific, historical, biographical, and news of the day. “[T]hey may not be copyrighted and are part of the public domain available to every person.” (Feist v. Rural Telephone Service Co.)
This ruling directly relates to whether or not sporting events can be copyrighted. Following this precedent, we can conclude that the actions that occur during a sporting event are factual, and not creative in the manner that ESPN could argue in the Bennett case. In Baltimore Orioles, Inc. v. Major League Baseball Players Association (1986), the MLBPA tried to argue that players do, in fact, have creative power over the outcomes of the game. The Seventh Circuit ruled that while “players’ performances” contain the “modest creativity required for copyright ability…the players agree that the cameramen and director contribute creative labor to the telecasts.” (Baltimore Orioles v. MLBPA) In summary, the creativity of a sporting event does not stem from the actions of the players and coaches, but primarily from the producers of the broadcast.
To further solidify this precedent set by the courts, the Second Circuit ruled on National Basketball Association v. Motorola in 1997. In this case, the NBA sued Motorola for violation of copyright law because Motorola had been compiling statistics from NBA games and transmitting it via pager to its customers across the country. The court ruled that because the pager “reproduce[d] only factual information culled from the broadcasts and none of the copyrightable expression of the games, [the pager] did not infringe the copyright of the broadcasts.” (NBA v. Motorola) Therefore, the FACTS OF A GAME are not copyrightable under the Federal Copyright Act.
However, it can be determined that sports BROADCASTS are indeed copyrightable under the Federal Copyright Act, according to Keeney.
“‘The bill seeks to resolve…the status of live broadcasts [of] sports, news coverage, live performances of music, etc.—that are reaching the public in unfixed form but that are simultaneously being recorded.’ Therefore, ‘[i]f the program content is transmitted live to the public while being recorded at the same time’ it is copyrightable. Sports broadcasts, therefore, are copyrightable.” (Kenney)
According to the case law above, we can certify that the game itself is not copyrightable, but the broadcast and retransmission of the game is itself copyrightable. In order to determine if Bennett would have a case against a copyright infringement lawsuit, we must also decide if his blog is “substantially similar” to the broadcast of the game he is covering. The blog itself is not an infringement, since it contains game facts. But, ESPN could use a “commercial misappropriation” tort and say that since it has broadcast rights, it has the right to control the information that is distributed via broadcast. ESPN could argue that Bennett was infringing upon its ability to make a profit, and doing so at the expense of ESPN.
In the Bennett case, however, the tort does not apply because 1) the Courier-Journal is not free-riding on ESPN and has to pay some expenses in order to gather the information at the game (Bennett is a paid member of the writing staff) and 2) the Courier-Journal is not in direct competition with ESPN. The newspaper must send a writer to the game, pay his expenses while he is there, and pay for the website on which Bennett is posting. There is no free-riding in this circumstance, nor is there a direct competition with ESPN, because the online blog is not a broadcast of the game, rather a collection of information and game facts that are not copyrightable.
Adding all of this together, we can reasonably conclude that if there were a court case in which ESPN sued the Courier-Journal for copyright infringement, the court would rule in favor of the Courier-Journal. Bennett was not violating ESPN’s copyright to broadcast the game because he was reporting facts from the game, and he did not violate the “hot news” tort because as soon as the facts of the game were broadcast to the public, they were a part of the public domain.
The Restriction of the First Amendment Rights of Student Athletes
While the media has continuously faced what seem to be unconstitutional restrictions at NCAA athletic events, student athletes are still facing restrictions on social media use from member institutions within the NCAA. For the 2010 football season, the football programs at Boise State University, Indiana University, the University of North Carolina, and the University of Miami, have all implemented social media restrictions on their players, at the behest of the head coach, the university, or both. (Robinson)
Thus far, there have been no specific rules created by the NCAA pertaining to the use of these sites, except in the instance of recruiting. With recruiting, the NCAA has chosen to include social media in its “electronically transmitted correspondence” category. Coaches can only contact recruits through the private message feature of Facebook and Myspace, and only during pre-determined windows of time.
Individual institutions have issued most of the limits that have been placed on athletes to this point. Private institutions are exempt from this, because they are not funded by the state. Therefore, institutions such as the University of Miami and the University of Notre Dame can impose as many restrictions on social media as they desire. The question is whether or not this is a violation of the players’ First Amendment right to freedom of speech at PUBLIC universities.
The basis of this argument resides in two different Supreme Court cases: Tinker v. Des Moines Independent Community School District (1969) and Healy v. James (1972). According to Tinker, high school students do not lose their rights when they enter the school building, unless there is a “substantial disruption of or material interference with school activities.” (Tinker v. DesMoines)
In Healy, a group of students petitioned the Student Affairs Committee at Central Connecticut State College to allow the creation of a collegiate chapter of Students for a Democratic Society. When the president of the university rejected their petition, the Supreme Court intervened and said that the college could not deny the students the same rights it had afforded to other similar groups on campus. In Healy, the “substantial disruption” claim is not a sufficient reason to preemptively limit the speech of certain groups on campus.
These cases also had an influence in four other Supreme Court decisions that involved high school athletes and their right to free speech. In Lowery v. Euverard (2008), four high school football players were dismissed from their team after creating and signing a petition that denounced the defendant, then the head coach of the football team, for his coaching methods. The players were given the option of apologizing for the petition, and when they did not, they were removed from the team. The Sixth Circuit found that since the athletes did not have grievances that warranted an investigation into the coaches’ methodology, they did not have the right to freely express their opinion about the coach without receiving consequences.
In Wildman Wildman v. Marshalltown School District (2001), a high school basketball player wrote a letter that criticized her coach for not playing his best junior varsity players on the varsity team, despite his promise to do so at the beginning of the season. When the coach asked her to apologize to her teammates, she refused, and he removed her from the team for the rest of the season. The Eighth Circuit ruled in favor of the defendant.
“It is well within the parameters of school officials’ authority to prohibit the public expression of vulgar and offensive comments and to teach civility and sensitivity in the expression of opinions…since the school was trying to create, an educational environment conducive to learning team unity and sportsmanship and free from disruptions and distractions that could hurt or stray the cohesiveness of the team.” (Wildman Wildman v. Marshalltown)
These two cases prove that while students do have First Amendment rights whilst on- and off-campus, these rights are not absolute. The schools have an interest to create an environment conducive to positive learning, and to protect sports teams from unnecessary disruption. Athletes that create speech that is not defended by Tinker are susceptible to punishment from their educational institutions.
On the other hand, the courts have ruled in favor of the plaintiffs in two other similar cases. In Pinard v. Clatskanie School District (2006), all but one member of a high school varsity basketball team signed a petition that asked for the removal of their head coach because of “derogatory remarks” made towards players, and the general discomfort the team felt while playing for the coach.
The team was given the option of participating in a mediation session at a later time and playing in their away game that night, or to not board the bus for the game. The team was not told whether or not they would be punished for choosing not to play that evening. When all but one player chose not to play, they were permanently suspended from the team.
The court found that the language of the petition “was protected speech because that speech could not reasonably have led school officials to forecast substantial disruption of or material interference with a school activity.” (Pinard v. Clatskanie School District)
In other words, the players’ speech was not directly tied to a threat to disrupt a school activity, such as refusing to participate in a basketball game. Their decision to not board the bus, however, was considered direct interference with a school activity, and was not protected by the First Amendment according to the court. This decision proves that if there is a legitimate safety concern on behalf of the players, their speech is protected.
Another similar case was Seamons v. Snow (1996), in which a high school football player was removed from the team for refusing to apologize for complaining about an incident of hazing in the locker room. The plaintiff was hazed by four of his teammates in the locker room following football practice, and he reported it to the proper authorities soon after.
After meeting with all of the players involved and the plaintiff, the coach decided that it was in the player’s best interest to apologize to him and the four other players responsible for the hazing for reporting the incident to the school. The court ruled that because the student was reporting an incident of physical and mental harm, he should not have been expected to apologize for doing the right thing. Therefore, his removal from the team was unwarranted because he did not intentionally disrupt a school function. It should be noted in this case that the plaintiff never intentionally left the football team, he was removed by the coach.
Combining the Rulings
With these four different rulings, we can reasonably conclude that when an athlete at a public institution expresses his or her DISSATISFACTION with a coach, the institution has the right to reprimand the athlete. However, when an athlete reports SERIOUS ALLEGATIONS against a coach, the First Amendment protects them.
In general, the court seems to deny prior restraint of athletes with the intention of preventing an incident from occurring, and this is directly related to the Healy case Public institutions will have to handle and penalize each “disruption of a school activity” that occurs on Facebook, Twitter, or Myspace on an individual basis, much like in the cases discussed. At public institutions of higher learning, it violates the First Amendment rights of the student athletes to preemptively remove their social media privileges.
It appears that if a student athlete would take a public institution currently banning social media to court for violation of their First Amendment rights, they would be successful in winning the case. As long as they are not guilty of the disruption rule, their use of social media use is protected by the First Amendment. Tinker and Healy provide a firm foundation for this ruling, with the four cases involving high school athletes providing more definition to the free speech rights of athletes at pubic institutions.
In general, the NCAA has been misguided in its restrictions of social media use at athletic events, and has misinterpreted the protections that copyright law provides. In a suit between a media outlet and the NCAA regarding the use of blogging and social media at an athletic event, the court should lean towards ruling in the favor of the media outlet. While the organization incorrectly handled the Bennett situation, the NCAA has taken the stance that restriction on social media, other than for the purposes of recruiting, are non-existent.
Whether it intended to leave personal social media use out of its bylaws, the organization has taken a Constitutionally sound stance on social media to this point. The NCAA, in order to improve First Amendment compliance within its membership, should actively encourage its members to remove social media restrictions and educate the athletes about their rights according to the First Amendment.
Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663 (7th Cir. 1986) (full-text), cert. denied, 480 U.S. 941 (1987).
Bozich, Rich. “Courier-Journal reporter ejected from U of L game.” Courier-Journal 11 Jun 2007, Print.
Branzburg v. Hayes, 408 U.S. 665 (1972)
Copyright Act of 1976, Pub. L. 94-553 (Oct. 19, 1976)
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)
Healy v. James, 408 U.S. 169, (1972)
Kenney, Christian. ” Kentucky Fried Blog: How the Recent Ejection of a Blogger from the College World Series Raises Novel Questions About the First Amendment, Intellectual Property, and the Intersection of Law and Technology in the 21st Centur.” Selected Works of Christian Keeney, Villanova University Law School. (2008): 85-112. Print.
Lapointe, Joe. “Blogger’s Ejection May Mean Suit For N.C.A.A..” New York Times 14 Jun 2007: Baseball. Print.
Lewis, Dannika. “No Updates from the Bench, Stands or… Press Box?: The Legality of Live Blogging from Sports Events.” Elon Journal of Undergraduate Research in Communications 1.2 (2010): 87-96. Web. 1 Apr 2011.
Lowery v. Euverard, 129 S. Ct. 159 – Supreme Court (2008)
National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 41 U.S.P.Q.2d (BNA) 1585 (2d Cir. 1997)
NCAA Division 1 Bylaw 220.127.116.11, 18.104.22.168.1, and 13.10.2
Pinard v. Clatskanie School Dist. 6J, 467 F. 3d 755 – Court of Appeals, 9th Circuit (2006)
Robinson, Eric. “Intentional Grounding: Can Public Colleges Limit Athletes’ Tweets?.” Citizen Media Law Project. Berkman Center for Internet and Society, 09 Nov 2010. Web. 23 Apr 2011.
Seamons v. Snow, 84 F. 3d 1226 – Court of Appeals, 10th Circuit (1996)
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)
Wildman v. Marshalltown School Dist., 249 F. 3d 768 – Court of Appeals, 8th Circuit (2001)