Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
SARASOTA, Fla. — Spring-training games are under way here, as they are across Florida and Arizona, and the bright warmth of a late-winter sun and a deep-blue sky over a Cincinnati-Pittsburgh game belied the chilly dispute going on between Major League Baseball and the news media.
What has become as regular a ritual as the cry of “Play ball!” is the pre-season battle between pro sports owners and those who report on their sports over exactly who owns what, when and for how long.
This spring, various news organizations are at odds with the baseball leagues over new rules governing limits on photos posted online during games, game information and video clips, and even the manager’s pre-game interviews. After a meeting March 5, news representatives noted some progress in rolling back some limits — but said “fundamental differences” remained.
Blame the new dot-com world. Blame the owners. Blame highly paid players. Blame the huge profits to be made from controlling the news of America’s pastime — or, for that matter, the National Basketball Association or the National Football League or the National Collegiate Athletic Association.
Or blame those news organizations that for years have not paid a dime to leagues in return for news that lures millions of fans (readers, viewers, listeners or online users) to subscribe, tune in or log on.
What’s a fan to do? And where’s the First Amendment in all of this?
Well, fans, hold on — those spring-training games are still being played. As to the First Amendment: Well, admittedly arguments for media coverage of sporting events rest much more in the spirit of a free press — and expectations of fans — than they do in First Amendment law.
Baseball is hardly alone or a trend-setter in proposing tighter control over the images and accounts generated by its teams. Pay-per-view broadcasts collided squarely with “free” television last season — not to mention Congress — over a New England Patriots vs. New York Giants game originally scheduled only for the pay NFL Network. The game wound up being simulcast on CBS and NBC after angry senators threatened to review the league’s antitrust exemption.
From the presence of sideline reporters to how quickly game statistics or accounts can be sent to cell phones and PDAs, from ownership of photos taken courtside to disputed ownership of the very game stats themselves, league owners have attempted to rein in non-authorized reports — and rake in profits from licensing or distribution. Results have been mixed: While the selling of broadcast rights has been accepted since the 1930s, a court declared in the mid-1990s that the statistics of a “serendipitous” athletic competition are “news” and not something anyone could own, any more than anyone could claim possession of election results or the latest stock-market figures.
The media’s moral argument was advanced recently by Associated Press Managing Editors President David Ledford in a letter to MLB Commissioner Bud Selig: News coverage of professional baseball “is woven into the fabric of American life, with readers across this country daily beginning their days consuming the coverage we provide. As society moves deeper into the digital age, newspaper coverage — including work done on our Web sites — must continue to chronicle America’s pastime with the same depth and heart that we’ve displayed since the game’s inception.”
Let me rephrase, in plainer — and admittedly less polite — words: A free press has been providing free promotion for your sport for a long time and it’s worked well with fans for both of us: Shut down that great system at your peril.
League-generated Web sites and broadcasts are slick, detailed and generally relatively inexpensive to purchase. Those sites will bring fans a boatload of facts, faces and well-groomed interviews with athletes and coaches. But it’s asking too much of a league or licensed site or broadcaster to report fully on the negative events and internal disputes and disagreements that are a fact of the real sports world.
That’s where a free press comes in — free in this instance to report on the good and the bad, to investigate and to celebrate as it wishes, without having to answer to owners or investors who are more interested in marketing than journalism.
Why not try both approaches? Competition should produce better not worse coverage, more not less information. As to which approach survives and which makes more money — in the spirit, if not the letter, of the First Amendment, let’s try something novel: Let fans make the call.
Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].