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.
The implicit presumption in this debate is that a sporting event is “news” and that media who attend the event are “reporting” the “facts” or offering “commentary” on the facts.
Suppose, however, this were a motion picture, and a member of the media video-blogged parts of the content of the film — from inside the theater. Does the theater have the right to eject the blogger? Does the theater have the right to condition media access to the film on an agreement not to blog from inside the theater?
My intuition is that the common answer to the second set of questions is “yes,” for a couple of reasons, and that “speech” considerations are or should be unavailing. One, the content of the film is typically treated as an “entertainment” event rather than a newsworthy “event” characterized by “facts,” and two, video-blogging the film clearly threatens some cognizable market for the film.
Why is a film “entertainment” and a baseball game “news”?
For an argument that even the news(worthy) should not be publishable if the information was obtained in violation of a contract, see Epstein, 52 Stan Law Rev. 1003 (2000). From the intro:
“May a private plaintiff recover damages from, or obtain an injunction against, a defendant that openly publishes truthful information about the plaintiff, when the defendant has wrongfully acquired that information? The recent cases that have addressed this question have primarily answered it in the negative, citing the First Amendment guarantee of freedom of speech and, with respect to the question of injunctive relief, its general prohibition against prior restraints of publication.”
but his view is that:
“Where true information is obtained illegally– whether by trespass, fraud, or breach of confidence or contract–the presumption should [be] that both damages and injunctive relief are made available to the party with the right to keep that information confidential.”
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