Rodney A. Smolla, President, Furman University
January 30, 2012

In Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc.,1 the U.S. Court of Appeals for the Seventh Circuit rejected a claim by Gannett that its newspapers had a First Amendment right to broadcast high school athletic games, despite an exclusive licensing agreement that had licensed broadcast rights to a competing media company.

The case involved the Wisconsin Interscholastic Athletic Association (WIAA), the governing body for high school and middle school sports in Wisconsin, a state government entity.  The WIAA sponsors post-season tournaments, and entered into an exclusive contract with American-HiFi, a video production company, to stream tournament events online.  If American-HiFi elected not to stream a game, other broadcasters could do so after obtaining permission and paying a fee.  Other news organizations were permitted to cover games, take photographs, conduct interviews, and broadcast up to two minutes of a game, but could not broadcast entire games or engage in “play-by-play” transmission.

Gannett argued that because the WIAA was a government entity, the First Amendment entitled Gannett to broadcast the WIAA games without obtaining permission and without paying a fee.  The Seventh Circuit totally rejected Gannett’s position, describing Gannett’s argument as “staggering.”2  As the court explained, Gannett’s position was both analytically flawed and foreclosed by Zacchini v. Scripps-Howard Broadcasting Co.3

Zacchini, playfully known to media lawyers as the “human cannonball case,” involved the carnival act of the great Hugo Zacchini, whose human cannonball entertainment act consisted of being shot out of a cannon into a net, an act that took about 15 seconds from blast-off to landing.  A local television station covering the Ohio state fair recorded Zacchini’s entire show and broadcast it on television, even though Zacchini specifically told the reporter not to record his act.  Zacchini sued for violation of his common-law right of publicity, effectively asserting that he possessed an intellectual property right in his own show, and that it could not be broadcast in its entirety without his permission.  The television station claimed a First Amendment right to broadcast the act, as a form of news coverage.

The Supreme Court ruled against the station and in favor of Zacchini.  The Court emphasized the distinction between simply reporting on or describing the human cannonball act, which would have qualified as news coverage, and actually filming the entire routine and showing it to viewers.  The Supreme Court thus drew a critical distinction – somewhat akin to the fair-use defense in copyright law – between coverage or reporting on one hand, and broadcast of an “entire act” on the other.

Also by analogy to copyright, the Supreme Court in Zacchini explained that the rejection of the First Amendment defense was consistent with the Constitution’s overall scheme regarding the protection of intellectual property, and the theory that legal protection of intellectual property actually enhances the marketplace of ideas, by creating an economic incentive for creation and invention.

The court in Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc.4 applied the logic of Zacchini to sports broadcasts.  As the court explained, when a media company broadcasts or streams a game, it is not doing the same thing as “reporting on or describing it.” 5  Just as importantly, Gannett’s theory ignored the distinction between the role of government in regulating speech, and the role of government in actually creating and owning its own speech.

When the WIAA created tournaments, it was acting as a proprietor, not a regulator.  It had the right to license its proprietary content to one media company over another, and grant its licensee the exclusive rights to broadcast the entirety of games.  Competing companies may have a First Amendment right to report on games, and even show brief snippets, by analogy to fair use in copyright law, but they had no right to appropriate the entire game, any more than the television station had the right to appropriate Hugo Zacchini’s entire act.

Comments From Our Readers

Human Cannonball Off Target in WIAA v. Gannett
A Response to Prof. Smolla
By Natalie Spears and Gregory R. Naron

Professor Smolla’s recent comment (“Court Uses Human Cannonball To Shoot Hole in Gannett’s First Amendment Claim,” Jan. 30, 2012) avoids the hard First Amendment issues presented by Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc., 658 F.3d 614 (7th Cir. 2011).  Like the Seventh Circuit, he does so by means of an uncritical application of Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

In Zacchini, a private citizen, Hugo Zacchini, had a property interest in his “human cannonball” act, the entirety of which was filmed and broadcast by a television station against Zacchini’s wishes.  While the Supreme Court held the station’s appropriation of Mr. Zacchini’s “entire act” was not immunized by the First Amendment, the Wisconsin Interscholastic Athletic Association (“WIAA”) – a state entity that sponsors high school sporting events in Wisconsin – is in a fundamentally different position than Mr. Zacchini, and the regulations it imposes on journalists covering high school athletics go far beyond merely prohibiting the broadcast of an “entire” game.

Unmentioned by Professor Smolla is that in the WIAA litigation, WIAA soughta broad declaration of its “ownership rights in any transmission, Internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description of any ‘tournament event.’”  Also ignored is the broad authority WIAA arrogated to itself under its media policies, “to grant, issue, revoke and deny credentials to any media or Internet site organizations based on the interpretation and intent of these policies determined by the WIAA.”  Under these policies, the WIAA can revoke or deny media credentials to anyone whose speech about tournament events the WIAA deems “inappropriate.”

The restrictions and licensing requirements WIAA has imposed on journalists who cover tournament events established a classic system of prior restraints by requiring that media companies purchase a license to report by audio, video or text transmissions on newsworthy, government-sponsored events that are open generally to the public.

Professor Smolla’s comment nonetheless asserts that Gannett neglected the “distinction” between “the role of government in regulating speech, and the role of government in actually creating and owning its own speech.”  Under the facts of the WIAA case, that “distinction” is illusory.  The WIAA is not simply a private “creator of content”; nor is it a professional sports league or private sports licensing organization.  It is a state actor bound by the strictures of the First Amendment.  The Seventh Circuit itself acknowledged that “even when acting in a proprietary capacity, state actors do not ‘enjoy absolute freedom from First Amendment constraints.’”

The First Amendment guarantees the right to gather and disseminate the news, via the Internet no less than other means.  Mr. Zacchini’s right of publicity in his human cannonball act bears no resemblance to WIAA’s claimed right to restrict the press’s ability to use all the tools at its disposal to report on a public, taxpayer-sponsored event in which there is tremendous community interest.  A state cannot play favorites with the flow of information about activities conducted under its aegis – or give its exclusive licensee unbridled discretion to do so.

Natalie J. Spears is a partner, and Gregory R. Naron is counsel, at SNR Denton in Chicago.  They submitted an amicus curiae brief to the Seventh Circuit in WIAA v. Gannett, on behalf of a coalition of news media representatives.  Gannett was represented by Robert J. Dreps of Godfrey & Kahn.