By Frank D. LoMonte
Executive Director, Student Press Law Center
Fueled by billions in television and licensing revenues, college athletic departments are increasingly stiff-arming journalists by restricting access to practices and games. Meanwhile, media industry leaders are looking for ways to respond.
The start of football season in August 2012 brought a wave of new restrictions on journalists—professionals and students alike—who cover college athletics. Threatening to revoke press credentials or close practices, coaches at several schools, including the University of Southern California, Washington State University and the University of North Carolina, ordered journalists to refrain from reporting on player injuries observed during practices.
In recent years, colleges and athletic conferences have become increasingly assertive about controlling how media organizations use the information and images they gather at sporting events.
The Southeastern Conference’s standard media credential, for instance, prohibits the sale for profit of any photo that includes recognizable athletes or coaches, and prohibits anyone other than a broadcast news outlet from posting online any game-action video other than video clips provided by the conference. The NCAA maintains—and colleges have occasionally threatened to enforce—limitations on the frequency with which blogs (including Twitter feeds) may be updated with game action in order to prohibit “live blogging” that might draw viewers away from officially-licensed telecasts.
In response to these restrictions, the Student Press Law Center and leading organizations representing the professional news media, including the American Society of News Editors and the Associated Press Sports Editors, have formed an informal working group to exchange information and to advocate for better access policies.
“First, and foremost, sports events are big news,” said attorney Kevin M. Goldberg of Fletcher, Heald & Hildreth, P.L.C., who represents ASNE on these issues. “Not just in terms of reader interest, but in many cities and towns around the country, especially those with a large university presence, they can often be the biggest business or social issues as well. Second, the restrictions being levied are so outrageous that they simply demand a response.”
“These issues will become more complex and difficult to manage going forward,” Goldberg said. “Sports teams, leagues, venues and events, at the professional, college, high school and local levels are trying to harness technology in ways that make them competitors to the local news outlets, effectively cutting out the local media. They are seeking not only to control the message but commercial aspects of that message as well. They are learning from each other, talking to each other and occasionally working with each other to perfect these restrictions.”
While public universities are governed both by the First Amendment and by open-meetings laws that grant the public a right of access to government activities, there is no clear legal basis on which to demand unfettered access to sporting events.
Public-access laws cover only “meetings” where government policy is deliberated or decided. The fact that an event takes place inside a publicly financed stadium is not, by itself, a basis for claiming a “right” to attend. A government agency can restrict access by issuing credentials, and can impose and enforce reasonable conditions for receiving credentials.
Courts have held that the First Amendment does provide a right of access for journalists to observe important government activities, such as criminal trials and official police activity occurring in public spaces. It is questionable whether a court would recognize a constitutionally-based right to insist on sideline access to a football game.
Once access is granted, it cannot be selectively revoked for retaliatory reasons, such as when a journalist expresses a viewpoint contrary to the government’s. And government agencies cannot selectively discriminate only against journalists. They cannot, for example, enforce a policy that enables fans in the bleachers to shoot and share video freely but restricts journalists from doing the same.
Most sports teams specify that ticketholders may not rebroadcast any game action, though it is questionable how that can be enforced. It’s also not clear whether live-blogging or live-tweeting restrictions will actually hold up in court if they’re challenged legally. However, news organizations should consider whether they are willing to forfeit their credentials while being a “test case.”
There are no known cases of media organizations actually losing credentials for providing live-blogging coverage, but the closer the coverage gets to a literal play-by-play description of events in real time, the more likely it is to draw a reaction. If threatened with the loss of credentials, journalists on the scene would probably be best advised to:
- Immediately involve a sports editor or editor-in-chief.
- Avoid a potentially heated on-the-spot argument that distracts from covering the event.
- Go along with the sports organization’s requests—thereby defusing the confrontation—by agreeing to post fewer blog updates or changing their vantage points on the sidelines.
- Carefully document which official made what threats; this documentation would be important for any legal challenges that could arise.
Student journalists have a particularly strong argument for leeway, since they, just like the student athletes they are covering, are in college to receive training and prepare for careers. A college that uses its authority to de-credential and expel student journalists is both harming the college audience and harming the career preparation of the students it hopes to place in professional employment.\
Journalists who have issues with access to sporting events—including restrictions on what they can post online when covering sports—are encouraged to report concerns to the Student Press Law Center at [email protected] or 703-807-1904. The SPLC is building a database of sports access issues in collaborating with the ASNE and other professional media organizations, to assist in identifying the restrictions that trouble journalists most frequently and that are most in need of reform, whether by regulators or by the courts.