Column: Inside the First Amendment, by Gene Policinski

When the nation’s founders protected press freedom, they had never heard of public high school football games. If they had, they probably would have understood the desire of a free press to cover them. But the press has run into a little trouble with that of late.

As school officials facing ever-rising costs search for new ways to finance their teams, amid a digital-age drive to “own” every possible image or activity, we are seeing a conflict between freedoms ratified in 1791 and today’s realities.

Recently a federal appeals court ruled that the Wisconsin Interscholastic Athletic Association may sign exclusive contracts for live streaming of its games, and that local newspapers do not have a free-press right to do the same without paying fees.

If the decision stands, it does not bode well for news outlets unwilling to enter into costly bidding battles for rights to show local or state public high school competitions — and may well affect other areas in which “private” entities like the state association are declared owners of what formerly, if not legally, were distinctly public events.

The 7th U.S. Circuit Court of Appeals’ reasoning was that news media still may report on the competitions in ways other than live streaming — through written accounts, interviews, photos and analysis. The decision cited a 1977 Supreme Court decision involving a “human cannonball” who, the justices said, had a right to control video coverage of his act. The Supreme Court noted that journalists could report on the performance in other ways.

Supporters of the 7th Circuit’s position in the Wisconsin case argue that college and professional teams long have licensed broadcasts of their sporting events, providing a major source of the income it takes to operate teams. Public high school sports are no different, they say.

Pro teams are private operations, but many still play in stadiums built with public money. State-funded universities are even more public than the pros. Nonetheless, any battle over rights fees today runs up against decades of licensing as an accepted practice.

But with public high schools, we still have a chance to get it right: to let the public see their sons and daughters in their games in their stadiums and gyms, across a range of news media.

A free-press right to show live sports still leaves room for copyright law to apply in other areas, such as allowing an artist the rights to own and sell his or her performance. Earlier court decisions in this area have distinguished “serendipitous” sports games — where the action and outcome is not predetermined — from crafted events that are the invention of an artist, ranging from stage plays and movies to live-but-scripted activities such as professional wrestling on TV.

Such a distinction recognizes and preserves the creative and marketing value of an artwork while leaving unrestrained the news coverage of live games — news coverage that has a rich history in this nation. It also has the advantage of being a distinction that stands regardless of advances in the technology that brings the sights and sounds of an event to an audience.

Some may be inclined to dismiss the Wisconsin association ruling as “just sports.” But in a world where new TV entities such as the MLB and NFL channels bring exclusive, essentially promotional (non-journalistic) media offerings to TV each night, is it really a far stretch to see cash-strapped states creating their own “networks” to control and market accounts of state championships? Or to envision a single broadcast entity licensed to live-stream a political party convention, leaving other journalists to less-effective methods of reporting the story?

Let’s hope we don’t see the day when “Play ball!” at the public high school level — or political party event — is followed by “Please insert your credit card to see the rest of the broadcast.”

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. Email: gpolicinski@fac.org.