Rodney A. Smolla, President, Furman University
March 20, 2012

How do assertions that the government possesses legally enforceable intellectual property interests that allow it to control and license access to governmentally sponsored entertainment and athletic events square with the First Amendment?

In a prior IP Viewpoints post on this site, I argued that the United States Court of Appeals for the Seventh Circuit ruled correctly in Wisconsin Interscholastic Athletic Association v. Gannett Company, Inc.,1 rejecting a claim by Gannett that its newspapers had a First Amendment right to broadcast high school athletic games, notwithstanding an exclusive licensing agreement that had licensed broadcast rights to a competing media company.

Taking issue with my defense of the ruling in WIAA, attorneys Natalie J. Spears and Gregory R. Naron, who filed an amicus curiae brief in the WIAA litigation on behalf of a coalition of news media representatives, argued in a counter-post on this site that the “First Amendment guarantees the right to gather and disseminate the news, via the Internet no less than other means.”  Spears and Naron maintain that my position, and by extension the Seventh Circuit’s, ignored basic First Amendment principles, and wrongfully equated the balance struck between intellectual property rights and freedom of speech established by the United States Supreme Court in the “human cannonball” case, Zacchini v. Scripps-Howard Broadcasting Company,2 to what Gannett, Spears and Naron, and their clients maintain is the very different balance that ought to be struck in the WIAA situation.

Given the force and thoughtfulness of the Spears and Naron critique, the issue is worth exploring more deeply.  The heart of the Spears and Naron argument is that the trumps given to intellectual property interests in Zacchini, where the property was created and owned by a private person, ought to be reversed when the creator and owner of the putative intellectual property interest is a governmental entity.  As Spears and Naron forcefully press it:

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.

To recap the facts, the WIAA case involved the Wisconsin Interscholastic Athletic Association, 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.

And so the issue joined is whether the constitutional balance is or is not significantly altered when the putative possessor of the intellectual property right is the government itself.

One possibility is that it does matter, and that it matters so profoundly that the Seventh Circuit’s analysis in WIAA is fundamentally flawed.  That case, in its strongest form, is that because events sponsored and paid for by the government belong, in the very nature of things, to the people, and because the government, as a state actor, is bound by powerful First Amendment doctrines such as the presumptions against prior restraint, viewpoint discrimination, and content discrimination, the government must open its events to all comers, and when those comers are news organizations, permit them to use the tools of their trade to disseminate the content of those events, through whatever medium they choose – print, broadcast, or Internet.

The Seventh Circuit found these arguments unpersuasive in WIAA.  Despite the critique advanced by Spears and Naron, so do I.

Let’s first explore a fundamental intellectual property question: May a government entity possess intellectual property rights that permit the government to exclude citizens from selected venues or events, granting access only to those who will pay to attend, and granting exclusive broadcast transmission rights (through any technological medium) to disseminate the performances to certain paying media licensees, to the exclusion of competitors?

If the answer is “no,” on the theory that the confluence of intellectual property and First Amendment principles bars this, then government agencies cannot function as the impresario for plays, musical concerts, art exhibits, lectures, or athletic contests in the same manner that private actors may sponsor such events, excluding those who do not pay for the privilege of live attendance, or the privilege of broadcast distribution.

There clearly are instances in which American law does not allow governments to claim intellectual property interests on the same terms as private parties.  So too, there are also instances in which the government is not allowed to exclude citizens from governmental venues.  Federal copyright law, for example, does not allow the federal government to claim copyright in “any work of the United States government,” though notably, this bar does not apply to the works of state and local governments.3   In Richmond Newspapers, Inc. v. Virginia,4 the Supreme Court held that constitutional principles grant the public, and along with the public, the press, a presumptive right to attend criminal trials.  Public forum law treats our major public spaces, such as streets, sidewalks, and parks, as “traditional public forums,” held in trust by the government for the people to use as venues for expression.5

But are these examples sufficiently hale to establish the far more sweeping principle that Gannett and its allies seek to advance?  Is there a general First Amendment principle that prevents the University of Wisconsin or the Naval Academy (to use both a state and federal example) from entering a deal that granted one television network the exclusive right to broadcast university football games, to the exclusion of others?  Is there a principle that prevents a publicly financed symphony from entering a deal licensing the broadcast of concerts to one network, to the exclusion of others?

The better answer, in my view, is no.  Several important dichotomies bear on the issue, and contrary to what Spears and Naron claim, the distinctions they make are not illusory.

First, consider the distinction heavily emphasized by the Seventh Circuit in WIAA, between the government as regulator and the government as proprietor.  This is not an illusion, but a rather a pervasive and persuasive distinction in constitutional law.  When a state government regulates interstate commerce, it is subject to the limitations of the Commerce Clause, which generally prohibits discrimination against out-of-state commerce.  But when the government acts as a participant in interstate commerce, selling its own goods, it is not bound by the strictures of the Commerce Clause, and is permitted to engage in discrimination in favor of local buyers, just as private business might.6   When the government regulates the speech of private actors in the marketplace, all the powerful First Amendment doctrines restricting content and viewpoint discrimination apply.  But under the “government speech doctrine” those restrictions do not apply to the choices the government makes when it is speaking in its own voice.7

Second, consider the “safety valves” for free expression that traditionally apply to mediate between intellectual property and free expression values, such as the fair use doctrine and idea/expression dichotomy, or the notion that copyright does not protect historic facts, in copyright law.  The fair use doctrine allows excerpts of a copyrighted work to be copied for “fair use,” such as critique or parody, but typically does not permit wholesale copying of an entire work, particularly when that reproduction distributes for free that which the copyright holder seeks to disseminate for his or her own profit.8   The idea/expression dichotomy distinguishes from the ideas embedded in expression, which may not be restricted by copyright, and the expression itself, which may.9   Similarly, copyright law does not protect facts as such, unadorned with additional expressive creativity.10   Thus copyright may protect an historian’s expressive narrative of history, or a sports reporter’s account of a basketball game, but it does not extend to protection of history itself.  Major League Baseball may own the copyright in a broadcast of a baseball game, but it does not own the facts of who won, who hit, or who struck out.

These distinctions have echoes germane to the Seventh Circuit’s reasoning in WIAA.  Wisconsin did not seek to prevent Gannett from reporting about the games.  The scores, performances, and narratives of play-by-play could all be reported.  The ideas and facts remained free for Gannett to report, criticize, or parody.  Gannett simply could not broadcast the games itself over the Internet, without a license.

What we see at work here is the fundamental difference between the government requiring a license as a prior restraint offensive to the First Amendment, and the government requiring a license as an incident to the bundle of rights it possesses as the owner of its own intellectual property.

If you think about the difference between reading or listening to or watching a sports reporter’s account of the game, and actually watching the game, you immediately see that the live broadcast is different in kind from the later report.  It is in the watching live that the real entertainment value lies, and correspondingly, where most of the money is.  That is why state universities can charge for admission, or sign lucrative television contracts, for sporting events.  Unless we accept the breathtaking claim that the Constitution prevents the government from entering the entertainment business at all, charging for broadcasts of the arts and athletics, Gannett’s argument that all governmentally produced entertainment is in the public domain must fail.

Even so, the claim advanced by Gannett, and the arguments advanced by Spears and Naron, may illuminate a soft spot in the Seventh Circuit’s reasoning.  The trial court in the WIAA litigation seemed to think that it might matter whether the underlying content of the speech was “political” in nature, as opposed to what seemed the purely entertaining qualities of sporting events.  The Seventh Circuit was not inclined to go there, drawing on the First Amendment orthodoxy that freedom of speech extends to the entertaining as well as the informing.

There may be, however, some value in considering a few nuances.  First Amendment values are at their apex when the event or venue is some vital exercise in the core governmental processes of the democracy, such as the proceedings of legislature or courtroom.  First Amendment doctrine does not, at least at present, recognize a right of access that includes free retransmission of the actual visual and audio events.  The First Amendment is not a Freedom of Information Act or a Sunshine Law requiring video access to governmental proceedings.  Thus the Richmond Newspapers decision, which grants citizens a right of access to attend criminal trials, does not require a seat in the courtroom for everyone – a physical impossibility – nor does it require that television cameras be allowed in the courtroom.

It does not follow, however, that we might not plausibly construct a prohibition against exclusivity for such broadcasts when attendance at the live event is available to the public on a first-come, first-serve basis as a matter of constitutional right.  Thus if television cameras are allowed in a legislative chamber or courtroom, significant the First Amendment problems quite plausibly would be raised if the Government engaged in speaker-based or viewpoint-based distinctions as to which networks could carry the proceedings.  If the Supreme Court were to grant camera access to oral arguments, I doubt it could strike a “pay per view” deal making one media outlet the exclusive carrier of the arguments, to the exclusion of others.  Just as Supreme Court opinions are in the public domain, and just as the facts and ideas that emerge in a Supreme Court argument are in the public domain, if the Court were to allow the live proceedings to be broadcast (as it currently allows audio tapes of oral arguments to circulate freely), it could presumably not pick and choose among vendors, letting FOX carry the proceedings but not MSNBC, for instance.

It is doubtful that the government would ever be so crass as to attempt to make money by selling the exclusive right to watch Supreme Court arguments, or the legislative proceedings now seen on C-Span, to the highest bidder.  Whether there would be enough commercial appetite to make these proceedings very marketable is doubtful, but imagine that watching Supreme Court arguments broadcast live became something culturally hot, and the Supreme Court hit on the idea of adding to the resources of the federal judiciary by attempting to charge for the privilege, barring anyone other than the Court’s paying licensee the right to show the entire proceedings gavel to gavel.   First Amendment values would be offended by this arrangement, and a potentially winning constitutional challenge to it could well be launched.

If this analysis is sound, it means that the argument advanced by Gannett would have genuine traction if the underlying proceeding were itself an exercise in governance of the sort that citizens presumptively may attend for free if they are patient enough to stand in line to watch.  Sports contests, or theatrical or music performances, however, are not exercises by the government in governance, but entries by the government into the marketplace of entertainment.  If the proprietary / regulatory distinction remains part of our legal landscape, thereby allowing the government, as proprietor, to enter the sports and entertainment marketplace much like a private actor, the access claimed by Gannett simply will not be recognized as a First Amendment imperative.  As long as reporting about those entertainments is not censored, it is difficult to see how any deeply resonant free speech principles are offended by the government’s proprietary judgment that you’ve got to pay to watch ’em play.