A Wisconsin case that could have nationwide implications for how reporters cover and how parents watch high school sports is making its way through the courts, with crucial constitutional arguments taking place Friday in federal court in Chicago.
The case pits community newspapers against the association that oversees high school sports in Wisconsin. Fans in many states rely on community newspapers for news about high school teams, and the newspapers say they need easy, unencumbered access to sporting events to provide that coverage. But the association says it can't survive if it can't raise money by signing exclusive contracts with a single video-production company for streaming its tournaments.
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The newspapers argued Friday before the 7th Circuit Court of Appeals that the First Amendment's guarantee of freedom of press should enable them to put such publicly funded events online as they see fit, free of charge.
The case began in 2008, when the Wisconsin Interscholastic Athletic Association sued The Post-Crescent of Appleton after it streamed live coverage of high school football playoff games. After a U.S. District judge sided with the association last year, saying its exclusive deal with a video production company didn't impinge on freedom of the press, the newspaper's owner, Gannett Co., and the Wisconsin Newspaper Association appealed.
Media lawyer Robert Dreps argued Friday that the newspaper's streaming of the game was the equivalent of reporting on the event, but Judge Diane Wood said she was "troubled by that."
The athletic association's attorney, John Skilton, argued that its deal with the video production company didn't prevent newspapers from reporting on the game. Reporters can still attend games, write critical comments about them and even display short clips of video they deem newsworthy, he said -- they just can't stream entire games.
"The heart of this issue . . . is the question: Is there any part of these rules that stifle speech?" he said. "The answer is -- there isn't that type of censorship in these rules."
Judge David Hamilton asked Skilton whether, given that line of thinking, a U.S. president-elect could cut a deal giving one company exclusive right to broadcast his inauguration.
"That's core speech," Skilton said, referring to political speech, which receives the greatest First Amendment protection. "So my answer might be different than for this case."
But overall, the judges fired their toughest questions at Dreps. Wood cut the media attorney off just seconds into his presentation, asking whether newspapers would claim similar rights to stream a high school production of the musical "South Pacific" online.
"No," he responded, "because there would be copyright issues involved."
Wood made a similar point later, asking Dreps whether she and the two other judges were themselves infringing on press freedom by not allowing the media to shoot video footage in the courtroom. Again, Dreps said no.
"The difference is you are not allowing just one company to do it," he replied.
Then Wood responded with bluntness uncommon in the typically sedate appellate court when Dreps argued the athletic association should be viewed as an extension of the government -- in part because it operates within one state.
"That's crazy," she said, drawing glances from her colleagues.
It's unclear how long the appeals court judges will take to mull over the arguments before reaching a decision. It could take weeks or even months.
Other athletic associations and newspaper groups are closely watching the outcome of the Wisconsin case, with a decision one way or the other possibly prompting litigation elsewhere.
It's not likely that college sports will be greatly affected.
The NCAA, which many state associations try to closely mirror, was ruled a private entity by the U.S. Supreme Court nearly 25 years ago in a case involving then-UNLV coach Jerry Tarkanian, who sued the association, claiming it had tried to drive him out of basketball.
The Associated Press has pledged financial support to the newspaper association and Gannett if the Wisconsin case goes to trial.