Thursday, March 4, 2021

The Constitution & a state championship series


No directors or anyone else mentioned the Constitution in any response to the recent Illinois Marching Online-Voxitatis poll regarding the possibility of a state of Illinois marching band championship sponsored by the Illinois High School Association. Nevertheless, I’m using my editorial judgment here to say that the Constitution must be included in the discussion.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (First Amendment)

The girl and boy at left are expressing themselves by doing a cannonball dive, the photographer is using his free speech rights to produce the photo, and I’m able to buy the right to use the photo only because the girl and boy signed a release giving the photographer the right to earn revenue from the photo, since the event isn’t newsworthy.

The Wisconsin exclusive broadcasting contract case

Wisconsin’s version of the IHSA is the Wisconsin Interscholastic Athletic Association. It develops state championship series for high school and middle school athletic and other events and regulates those contests and the tournaments.

In 2005, the WIAA entered into a contract with American Hi-Fi, a video production company. The contract gave American Hi-Fi the exclusive right to stream live broadcasts from tournament games. If American Hi-Fi decided not to stream a given contest, any media organization could apply, pay a fee, and be granted the right to stream the contest or to show a tape-delayed broadcast on TV, radio, or the Internet.

Believing that their free press rights had been violated by the WIAA in this exclusive contract, Gannett Newspapers, which owns USA Today and several much smaller newspapers, streamed some tournament games anyway, without getting permission from the WIAA or paying the fee. The WIAA sued Gannett in state court, Gannett removed the case to federal court, the district court granted summary judgment in favor of the WIAA, and the US Court of Appeals for the Seventh Circuit (Ill., Wis., Ind.), in August 2011, affirmed the order of the district court, though for different reasons.

The case is probably closed at this point. I see no door left open by the Seventh Circuit for an appeal to the Supreme Court.

The ruling hinged on the real difference between “reporting on” an event and “broadcasting an event in its entirety.” Gannett said the contract between WIAA and American Hi-Fi restricted its right to report on the contests, which a government agency like a school can’t do. The court, however, found that Gannett’s free press rights were not restricted at all, at least if we define “reporting” as the kind of thing we do: writing about it, an interview here and there, maybe a few photos for visual learners, that sort of thing. As soon as anyone starts delivering the entire contest to viewers on the Internet, that’s not “reporting” anymore.

As the “creator” of the content—the state championship tournament—the WIAA had every right, the court ruled, to package up that content in any way it saw fit because it had a copyright interest in that content. For example, the WIAA allows any broadcaster to show no more than two minutes of any game, about one-sixtieth the total duration for football, as part of its understanding that “reporting on” the event cannot be restricted by government (the WIAA as agent). The IHSA has no such limitation in its current broadcast agreement.

The difference between reporting and broadcasting

On these pages, I have always maintained in my coverage that people have a right to know how their tax dollars or, in the case of private schools, tuition dollars are being spent. Therefore, I have always felt at liberty to report on newsworthy school activities, classes or how the state’s curriculum is taught, and other events through the use of descriptions, editorials, photographs, etc. But I have also always understood I can’t use video. Since I can’t use video in my reporting, I don’t even own a video camera.

That’s because video transmission of school events would infringe on the First-Amendment rights of the school, a legal fact I understood long before the Seventh Circuit ruled in the WIAA case. For example, suppose a music department wanted to sell DVDs of their orchestra’s performance of Beethoven’s Fifth Symphony. The work is in the public domain, so there are no copyright considerations with the school’s performance of the work. But if I had recorded video and audio of the performance and streamed it on YouTube, the school would have a reduced ability to sell its own version of the DVD and raise funds. That’s why I don’t do video.

Of course, schools don’t have to exercise that right, but the point is, that’s their choice, and I can’t make it for them by streaming the video. I can write about the concert, probably show a few photographs, write an editorial about how we need to incorporate Beethoven’s music in our school orchestra programs, and so on. But if I make the school’s entire performance available, I’m definitely infringing on their First-Amendment rights. As I said, they may not care, but I still have to recognize that they alone reserve that right. Just because the school receives my tax dollars doesn’t give me or any organization the right to infringe on their freedom of speech, the Seventh Circuit affirmed.

The three-judge panel noted this huge difference between coverage, which is a right reserved by the media, and transmission, which remains a right reserved by the owner of any copyright interest in a work or performance. In affirming this difference, the Seventh Circuit cited the Supreme Court case of Zacchini v. Scripps–Howard Broadcasting Co., 433 U.S. 562 (1977).

A human cannonball and permission to transmit

Hugo Zacchini was a circus performer who claimed a TV station unlawfully filmed and broadcast his 15–second “human cannonball” act at a state fair. He asked a reporter not to film the routine, but the reporter recorded it anyway and played the whole act on the evening news. Here’s what the Supreme Court had to say about that, as written by Judge Wood, writing for the Seventh Circuit:

The Court emphasized that the nature of the reporter’s action was key. If the television company had “merely reported” that Zacchini “was performing at the fair and described or commented on his act,” the case would have been “very different.” But Zacchini was not arguing the media could not report on his routine. He was complaining that the station “filmed his entire act and displayed that film on television.” The distinction between coverage or reporting on one hand, and broadcast of an “entire act” on the other, was central to Zacchini (distinguishing precedent involving “the reporting of events” from “an attempt to broadcast or publish an entire act”). Regardless of where that line is to be drawn in close cases, the Court was “quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent.”

Schools and their agencies and associations are different from a private circus performer in some respects, but they also share qualities of citizenship. Specifically, although schools can regulate our actions and tax us, they retain proprietary interest in the works they produce, especially if those works involve the kind of personal expression we see in a musical performance.

The Seventh Circuit rightly distinguished between the regulatory authority of the government to make laws, rules, and treaties and the proprietary interest of government bodies to make contracts and raise revenue. In the latter role, the government and its agencies have rights like people, and we must, as citizens, stand up for those rights.

Next …

This is the sixth page in our report. The previous chapter, entitled “Students, parents, others respond about an IL state marching band championship,” is available here. The next chapter (link here when available) will be about how the IHSA might deal with media policies for a marching band state championship series it develops.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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