NDSU’s media restrictions are increasingly commonplace, but are they legal?
News broke over the weekend that FCS power North Dakota State would limit media access to athletic events. Citing a need “to protect” its…
News broke over the weekend that FCS power North Dakota State would limit media access to athletic events. Citing a need “to protect” its brand, NDSU placed restrictions on the types of coverage media are permitted without paying for a rights agreement. Reaction from the Internet was as expected with usual media watchdogs Deadspin and Awful Announcing weighing in.
Deadspin asked “ It’s unclear to us how a public university can enact these kinds of restrictions” and that is a good question, which has a muddied answer and which will likely need to be decided in the court system, should anyone want to pursue legal action. Why is it muddied? Those are issues I (shameless plug, sorry) consider in a forthcoming article in the Marquette Sports Law Review. Let me summarize the issues present here — please note this is not an attempt to state whether NDSU is performing legally or illegally. I am merely raising issues which can be used to frame these discussions. Much of this post is based on the content of that article.
Protecting a property right. Sport organizations like NDSU are free to license the right to broadcast their competitions to different media technologies and seek to maximize that right for financial gain. A credential is an invitation by the organization, and it is perfectly legal for NDSU, or any other organization, to condition those credentials on compliance with certain media policies. So, NDSU is in the clear on this point.
Who is media? This is a complex question. Certainly the Fargo Forum fits the mold of traditional organizations in the profession of journalism, as do the local television and radio stations. But in this digital age, an argument can be made that anyone with a smart phone, tablet or laptop performs in the activity of journalism. Indeed courts have ruled that independent bloggers are to be considered journalists under certain circumstances (see Obsidian v. Cox, 2012; Comins v. VanVoorhis, 2014).
We know athletic departments like NDSU are interested in pushing unique content to their social media platforms. Doing so allows organizations to control messages and bypass traditional media, effectively communicating directly to organizational stakeholders. It is also possible to monetize this content through sponsorships.
IF we assume athletic departments, with their sophisticated technologies, are therefore functioning in the activity of journalism (or at the very least functioning similar to bloggers), then is it too much of a stretch to conceive an athletic department as a media organization? And IF athletic departments are providing unique content on their platforms, are they in competition with traditional media in the profession of journalism? Clearly questions about objectivity arise if the organization is also the media outlet (think 1970s-style Pravda). But beyond objectivity, the question still remains, can NDSU, or any athletic department, restrict access to certain media organizations (the Forum, in this case) while preferencing other media organizations (the athletic department, in this case)?
State actors. The answer to that final question may well rest with how the courts interpret the role of a public institution’s athletic department. The courts have asserted that athletic associations, both at the high school and collegiate levels, are state actors (see Brentwood Academy v. Tennessee Second School Athletic Association, 2001), requiring athletic departments to consider due process when creating policies. As a state actor, newsgathering can only be regulated on compelling government interests.
Calzada (2010, p. 16) noted “Typically, a state actor may not deny access to one member of the media while granting access to another.” As NDSU has stated, revenue considerations may be behind the restrictions. If so, this would not be considered compelling government interests to invoke the First Amendment.
Through time, place and manner tests, the courts have developed guidelines for applying restrictions in public places. However these TPM restrictions would not apply to sporting events which are considered public events, and the court in Wisconsin Interscholastic Athletic Association v. Gannett, 2012, acknowledged state actors have the same right as private entities to enforce their property right to games.
Practices, however, are not generally open to the public. So, conceivably, IF an athletic department is defined as media, and IF it is a state actor publishing unique content from a practice in which certain media were not permitted to attend, the athletic department may be illegally discriminating against those outlets.
Rationale view. A more rationale approach to NDSU’s restriction is that it is dumb. As a retired public relations practitioner, I wanted to gain the widest possible audience for my organization. Restrictions on dissemination of content are not consumer friendly. NDSU’s policy seems to suggest a sell out of traditional public relations values for the almighty dollar, an opinion nicely articulated here by PR practitioner Sarah Skerik.
NDSU is not the first sport organization to impose restrictions on the dissemination of content (Hello, SEC in 2009!) and it won’t be the last — at least not until the confluence of property rights, media and digital technologies in sports is sorted out, likely in the legal system.