I say “purports” because the policy is unenforceable, absurd (so people won’t obey it voluntarily), and probably unconstitutional when applied to games played at public school venues. Nevertheless:
A Courier-Journal sports reporter had his media credential revoked and was ordered to leave the press box during the NCAA baseball super-regional yesterday because of what the NCAA alleged was a violation of its policies prohibiting live Internet updates from its championship events.
Gene McArtor, a representative of the NCAA baseball committee, approached C-J staffer Brian Bennett at the University of Louisville’s Jim Patterson Stadium in the bottom of the fifth inning in the U of L-Oklahoma State game. McArtor told him that blogging from an NCAA championship event “is against NCAA policies. We’re revoking the credential and need to ask you to leave the stadium.” …
U of L circulated a memo on the issue from Jeramy Michiaels, the NCAA’s manager of broadcasting, before Friday’s first super-regional game. It said blogs are considered a “live representation of the game” and that any blog containing action photos or game reports would be prohibited.
“In essence, no blog entries are permitted between the first pitch and the final out of each game,” the memo said. …
“It’s a real question that we’re being deprived of our right to report within the First Amendment from a public facility,” said Jon L. Fleischaker, the newspaper’s attorney.
“Once a player hits a home run, that’s a fact. It’s on TV. Everybody sees it. (The NCAA) can’t copyright that fact. The blog wasn’t a simulcast or a recreation of the game. It was an analysis.”
During the middle of yesterday’s game, Courier-Journal representatives were told by two members of the U of L athletic staff that if the school did not revoke Bennett’s credential it would jeopardize the school’s chances of hosting another NCAA baseball event.
“If that’s true, that’s nothing short of extortion and thuggery,” Ivory said. “We will be talking to our attorneys (today) to see where we go from here.”
Michael Silence asks, “Does this apply to someone talking on the phone and telling the other person about the game?” Analytically, it must, at least if the speaker is “telling the other person about the game” with the knowledge and/or intent that the other person will turn around and post those updates to a blog. How can one draw a principled distinction between that and what Bennett did — or for that matter, what I do with my audio-, photo- and text-based liveblogging of games from the stands at Notre Dame Stadium and elsewhere? Indeed, how can one really distinguish between “liveblogging” and telling friends about the game, even if those friends don’t have a blog? Is there really an analytical difference between giving phone updates to five friends and posting an update via phone to a blog that gets five readers? Where, and how, does the NCAA draw the line?
Because the NCAA is not a state actor, I suppose the policy isn’t unconstitutional on its face. So, I probably wouldn’t have a First Amendment leg to stand on if ejected for blogging, say, a Notre Dame-USC game. (Although I guess that wouldn’t happen if the policy only extends to “championship” events, as opposed to regular games between NCAA member institutions.) But when the game involves public universities’ teams, playing in a publicly owned stadium, policed by public employees (ushers, law enforcement officials, etc.), that’s much more questionable.
This actually relates back to a recent discussion about limitations on photography in public places. Can a government entity (i.e., the university) contractually condition a person’s entry to the press area — or to the stadium itself, in the case of a non-MSM blogger like me — on a prior restraint of free speech? Prior restraints are the most disfavored of all government actions with regard to speech, so I don’t think they access to a public facility can be conditioned on them without a pretty damn compelling interest (like the sort of interest that would arise when someone enters a military base, not a baseball stadium).
That said, I’m shooting from the hip with my legal analysis here, and I could be wrong. I’m curious what our other resident legal scholars think, if they haven’t all sworn off the blog for bar study. :)
Legalities and constitutionalities aside, the policy is self-evidently ridiculous, and if it wasn’t the NCAA enforcing it, I’d have full confidence that pressure and outrage from the public, media and blogosphere would lead quickly to the policy’s elimination. However, given that a remarkably high percentage of the NCAA’s policies are self-evidently ridiculous and yet remain in force, I’m not sure why this would be any different.
(Hat tip: Lisa. Sorry, Scientizzle and InstaPundit, I found about the story from Lisa first. :)
P.S. One blogger wonders why we’re only hearing about this policy now, and why the heck the NCAA would enact and enforce something so self-defeating:
The NCAA claimed that it does not allow live-blogging during its championship events.
That’s news to me, someone who has live-blogged during UK’s games in the NCAA Basketball Tournament and during the Final Four the past two years. At no time was I presented with any regulations by the NCAA that prohibited live-blogging during its events.
If there is such a rule, it is an asinine one — another in a long list of misguided NCAA rule-making. The Courier-Journal is in the business of reporting. That was what Bennett was doing during the Super Regional, posting periodic updates on the C-J website during Louisville’s games, just as I do during UK football and basketball games. Just as some bloggers do from their couches at home while watching games, or TV shows, etc.
Does anyone actually believe that such reporting/commentary is the same as the immediacy of a television broadcast, etc.? Especially for a sport such as college baseball, you might think the NCAA would welcome all the coverage it could muster. From what I understand, the city of Louisville went nuts over the baseball Cards success, a fact that obviously helps the NCAA in promoting its events. The more coverage the better. Instead, the corporate spoil-sports in Indianapolis appear more interested in shooting themselves in the foot.
June 11th, 2007 at 11:29:53 pm
This particular situation has a number of very interesting layers, and none of them are entirely clear.
From a free speech issue of things, I think the NCAA is in a similar position as the Tennessee Secondary School Athletic Association was in the case of Brentwood Academy v. TSSAA, 531 U.S. 288 (2001) .
In that case, Brentwood was a private school associated volunarily with the state’s high school athletics group. Brentwood was sanctioned by the TSSAA for recruiting players in violation of TSSAA rules. The US Supreme Court held that TSSAA was essentially a “state actor” for purposes of the First Amendment. Essentially, the court found the TSSAA to be only a “nominally private” entity, with significant involvement with public schools.
Of course, the NCAA is probably in that same kind of situation, I’d think. While there are clearly private schools associated with the NCAA, there are also tons of public schools, possibly making them state actors. The Tarkanian case alone could certainly be read as Brendan points out, stating the NCAA isn’t a state actor, really only because it’s so doggone big. Clearly limited TSSAA gets stuck as the puppet of the state of Tennessee, while the NCAA can do many more serious actions and not consider itself a “state actor.”
The TSSAA case tried, poorly, IMHO, to put a narrow point to this argument. Essentially, if something looks like a state actor, smells like a state actor, and acts like a state actor, it’s only a state actor if we can actually very, very narrowly construe who the state actor is. In other words, if you want to meddle around with free speech and act like a state actor without the consequences, make sure your operation is bigger than a single state/community. Phooey on that nonsense. Either eliminate state actor doctrine all together, or apply it to anyone acting with the authority and permission of the state(s).
So, from a free speech side of things, there’s at least a colorable argument to be made that it’s an unconstitutional prior restraint by a “state actor.” However, if the Court upholds it’s prior logic re the NCAA in Tarkanian , it won’t fly. I’d be interested to see how the newly constituted court would deal with it, though.
I think the real way to deal with this situation is from an evaluation of the contracts involved. I think you have to evaluate the nature of the media or non-media person at the games. How is that person in the stadium, and what is the purpose for them being there?
From a media perspective, the NCAA gives credentials to journalistic outlets in the MSM to report on the games. They don’t allow other radio and television affiliates outside of their broadcast agreements to enter the stadium to air the games. They’ll let reporters come in to cover the game, but not to broadcast it. I’d say that the NCAA is a license-giver in this situation, and the terms of the license afforded to the MSM depends on your specific relationship with the NCAA.
From a fan perspective, I don’t know that your license would include live-blogging a game, but I also don’t know that it wouldn’t. If you’re at the game, most likely you’re there simply with a license for a specific purpose and duration.
I think that the NCAA has an obligation to itself (and its member schools) to take steps to enforce its contractual obligations to its broadcast partners. In the case of the baseball tournament, I’d suspect that’s ABC/ESPN. NCAA is potentially putting itself in a spot of breaching a very lucrative television/radio deal by letting some local reporter live blog the game.
The way to address this problem is clear. The NCAA needs to reevaluate the scope of the licenses they provide to reporters and fans attending games. They simply must take into account the technology and information driven society we all work with now. Make sure that all sides understand their rights and limits. This shows the biggest problem we have here, which is a failure of our understanding of the expectations and scope of rights for the MSM and fans with regard to their attendance at sporting events.
Personally, I think that live blogging the game on a pitch for pitch account by a newspaper is probably walking a very fine line (though probably not breaking it) on violating private contract rights. Just because they’re on a public school campus does not automatically guarantee a right of access, right to speak as they will does it? Creating a detailed journal solely for your personal use is one thing. Keeping that same journal open for public inspection is another.
Very interesting issue at the intersection of private individual free speech, the media, and new technology.
June 11th, 2007 at 11:47:52 pm
If the purpose of the policy is to prevent “live blogging the game on a pitch for pitch account,” then it’s massively overinclusive (because it bans all liveblogging during the game, not just the sort of liveblogging that could be remotely be construed as competing with a live TV or radio broadcast). And anyway I would see that as the sort of issue that should be dealt with through a copyright infringement or breach-of-contract suit after the fact, not a prior restraint (at least if the person doing the restraining is a state actor).
June 12th, 2007 at 12:01:16 am
Why would the NCAA do something inexplicably stupid that makes them look bad? Thats like asking why the first thing you did during that earthquake freshman year was reach for your video camera, its in their nature, its who they are!
June 12th, 2007 at 1:38:33 am
Why would the NCAA do something inexplicably stupid that makes them look bad?
I see you’re unfamiliar with the way we work…
June 12th, 2007 at 9:35:52 am
I’m somewhat reminded of Pittsburgh Athletic Co. v. KQV Brdcst. Co., 24 F. Supp. 490 (W.D. Pa. 1938). It’s basically the first case that said that sports teams or organizations have a property right in the content of their games. Maybe the NCAA could make the same claim to their championship games. I’m pretty sure for regular season games that the schools would hold their own property rights. Still, I think even the idea of it is ridiculous. As has been said, what’s the difference between blogging it and calling or texting a friend to tell them the score or some other update. What are they going to do next–ban all cell phones? Yeah, go ahead and try that NCAA.
June 12th, 2007 at 9:53:34 am
We have had our own issues with NCAA ie. our “Indian” mascot.
June 12th, 2007 at 10:19:46 am
Actually, it seems to me that they could ban all cell phones without raising any constitutional problems. That’d be just like banning video cameras or beer. They can ban physical objects as a condition of entry to their facility. I think it’s more problematic when they ban speech than when they ban objects that facilitate speech. Thus creating one of those weird dilemmas (not at all uncommon in constitutional law) where the government can ban X, but cannot ban a subset of X.
Of course, banning cell phones would be fantastically idiotic. :) But I think they’d be on firmer legal ground, anyway. That’s just off the top of my head, though.
June 12th, 2007 at 11:44:37 am
I’m not saying that they don’t have legal standing to ban cell phones. I’m just saying it would be the most idiotic thing ever.
June 12th, 2007 at 11:51:47 am
Indeed. Well, actually, I’m not sure about “most idiotic thing ever,” but it would at least be on the list of the Top Ten Most Idiotic Things The NCAA Has Done This Week, and that’s saying something. :)
June 12th, 2007 at 12:46:14 pm
Actually, it seems to me that they could ban all cell phones without raising any constitutional problems.
Constitutional no, maybe, but I think it might be troublesome legally, perhaps less so at private schools, but even then. The reason I think this might be the case is that its currently illegal in places like churches and movie theaters to employ technologies to block cell phone reception. There was an article awhile back about churches in Mexico using a special paint that had metal shavings in it to do just that, but that it was illegal to do so in the U.S. in the interest of public health not from the paint itself but the potential to stop someone from being able to make a life saving phone call in case of emergency.
June 12th, 2007 at 1:08:57 pm
On a related note to David’s post: Does anyone know if they employ such cell phone blockers on rides at amusement parks? It was something that occurred to me after my last visit to Disneyland. Not once while I was inside a ride (either in line or on the ride itself) did I hear someone’s cell phone go off. Maybe this was just coincidence, but I noticed the same thing when I was at Six Flags Over Texas. Sorry to ask a rather unrelated question, I was just curious.
I also wonder if it would be legal to have a cell phone blocker in a movie theater that works only while the film is showing. That way they could switch it off between showings or in case of emergency.
June 12th, 2007 at 2:38:48 pm
I don’t know if they would employ such blockers in amusement parks, but the construction and materials used might or might not block them in any case.
June 12th, 2007 at 3:12:14 pm
Blogs are clearly the wave of the future (or even the present) as far as journalism goes. From a marketing standpoint alone, I’m baffled that the NCAA isn’t seeing live blogs as a chance to increase the popularity of college baseball. Actually, with all of ESPN’s sudden interest in college baseball (the “draft,” the Super Regionals, etc.), I’m baffled ESPN hasn’t stepped up and made this happen.
Of course, that would be asking two ignorant mega-idiots to see reason.
June 12th, 2007 at 7:57:18 pm
I seem to remember a lot of animosity to blogs coming from ‘real’ journalists. Wonder if there is a connection (reverse Playmakers?)