The New York Times recently ran a story about a reporter ejected from a baseball game for blogging about the game while it was in progress. Apparently, the NCAA, which organized the game, issues press credentials only if the reporter agrees not to blog about game action while the game is in progress. It’s understandable why the NCAA (or any sports organization) might want such an agreement. If reporters tell others about what is going on while the game is in progress, it might undercut the value of exclusive tv, radio, or internet broadcasting rights. Indeed, the NCAA claims that the reporter’s ejection is “a logical extension of the rights that have been around for years and years.”
It does not look like litigation is forthcoming in this case, but I can imagine it happening in another. I can also imagine a court siding with the NCAA (or some other league or team) on the very theory adopted by the NCAA. I’m troubled by such a result.
There’s an obvious free speech angle here. Do we really want to uphold contracts that tell people not to write about what they are seeing? Yes, there’s a possible “hot news” claim the NCAA could make, but the Motorola case questions such a result. Of course, the NCAA could choose not to rely on the hot news angle, and instead claim it’s protecting “regular” broadcasting rights. However, those broadcasting rights rest on a pretty thin foundation – namely the right to exclude a broadcaster from the premises where a game takes place. Do we really want to bootstrap this flimsy foundation into something that gives those who control stadiums the right to control the speech of those in the stadium? Indeed, it seems to me that deciding in the NCAA’s favor does little to protect broadcasting rights unless courts also give the NCAA the right to prevent blogging by others who are not present at the game, but watching on TV. That really strikes me as extreme.