Court to rule on media policy

Steven M. Badger

By Steven M. Badger

The U.S. Court of Appeals for the Seventh Circuit will hear oral arguments this month in a case that will decide whether a high school athletic association can require media organizations to buy licenses for Internet streaming of school sporting events.

The appellate court is reviewing a June lower court decision upholding the Wisconsin Interscholastic Athletic Association’s policies regulating Web streaming of high school tournaments.

Two Gannett newspapers in Wisconsin challenged the licensing policy on First Amendment grounds.

The Wisconsin licensing policy at issue requires any media organization to pay a fee ranging from $250 to $1,500 for the right to stream video of any tournament event.

The Wisconsin association also reserves the right to grant streaming rights without specifying any standards for its rulings.

Under the policy, any media organization that pays the licensing fee and receives Internet streaming rights must provide a master copy of its video to a private company holding exclusive broadcast rights.

That private company then may market the video, and the media organization that made the video is entitled to a 20 percent share of the proceeds.

The lower court observed in its June ruling that “ultimately, this case is about commerce, not the right to a free press.”

Gannett’s appeal, however, argues that the Wisconsin athletic association’s revenue-generating motive does not trump the media’s First Amendment rights.

Gannett also focuses its constitutional arguments on the unrestricted discretion the athletic association reserves for itself to grant licenses to media organizations of its choosing.

Gannett contends that if the athletic association wishes to pick and choose which media organizations can stream video, the First Amendment requires it do so on an even-handed basis without a threat of exclusion based on viewpoint.

An array of national media associations and media companies has joined in supporting Gannett’s appeal through the filing of an amicus curiae (friend of the court) brief.

Those supporting organizations include the Newspaper Association of America, the American Society of News Editors, the National Press Photographers Association and The Online News Association. The supporting media companies include Sun Times Media and Lee Enterprises, among others.

The Wisconsin athletic association is supported by two amicus briefs, one by the National Federation of State High School Associations and the other by 10 state high school associations, including the Indiana High School Athletic Association.

A decision by the Seventh Circuit is expected this summer or fall. Any of the parties could then seek review by the U.S. Supreme Court.

The decisions of the Seventh Circuit Court of Appeals are binding precedent for lower federal courts in Indiana, Illinois and Wisconsin.

— Steven M. Badger is a partner at Bose McKinney & Evans in Indianapolis and represents media organizations and journalists in media law and First Amendment matters.