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From the Fall 2000 issue of The News Media & The Law, page 9.

From the Fall 2000 issue of The News Media & The Law, page 9.

By Scott L. Matson

Before WTHR News Director Jacques Natz could get media credentials for the Indianapolis Motor Speedway, organizers of the annual Indianapolis 500 auto race wanted his signature on an agreement about what footage the station would air. Natz balked at the arrangement.

“They were telling us what we had to air,” he said. The agreement called for the station to air a two-minute video produced by Formula One Management.

The race still led the Channel 13 evening news, but rather than air the pre-packaged footage, Natz opted for 30 seconds courtesy of CNN. “Three-quarters of a million people were going to see the event,” he said. “My great fear is today F-One, tomorrow the NFL.”

In years gone by, a reporter with a press card tucked in his fedora could seemingly roam free. The present-day reporter must compete in a fast-paced, global journalism market where stand-ups appease the focus groups. Access to an event means getting the story, even if getting there requires a trip around the world. Distance, however, is not the only barrier.

As WTHR-Channel 13 joined NBC affliates from cities such as Boston, New York, San Francisco, Salt Lake City and Nashville at the Olympics, media in other markets improvised to bring stories of local Olympians to their readers and viewers. The Internet eliminated the need for press credentials or traveling, but it also created seemingly unprecedented rules.

The International Olympic Committee this year strictly enforced Rule 59 of the Olympic Code of Conduct. Among other things, the rule prohibits the publication of diaries written by athletes during the games. The breadth of compliance by news organizations, or the athletes themselves, varied as some news outlets proceeded with their web-based reports and others halted online features once the games began.

The Baltimore Sun, for example, used Internet coverage on its site, SunSpot.net, as a supplement to its daily reporting from the games. The site hosted chats with local athletes throughout the summer months, but the reports stopped once the athletes left the United States.

Kristine Lilly, a midfielder on the women’s soccer team, wrote at least monthly for CNNSI.com prior to arriving in Australia. Lilly penned her final two entries, dated Sept. 4 and Oct. 3, before the team left and after she returned home, respectively.

CBS, which did not have the broadcast rights to the games, relied exclusively on Sportsline.com as the network’s source for Olympic coverage. Rule 59 also prohibits any video transmission of the events, save for the holders of the exclusive broadcast rights. The site did, however, provide a question-and-answer exchange through September with basketball players Lisa Leslie and Shareef Abdur-Rahim as well as swimmer Gary Hall, Jr.

Deciding the extent to which the IOC may control media coverage of the games and access to the news-makers involves two bedrock principles in American jurisprudence. The Bill of Rights holds sacrosanct both free speech and the rights associated with private property. It should be clearly noted, however, these constitutional guarantees guard against governmental intrusions. Private entities, such as the IOC, Formula One and all professional sports franchises, have greater liberty to restrict media access, and as a result, shape public perception of their product.

For Natz, the Indianapolis television news director, accepting Formula One’s conditions meant forfeiting control of the content of the newscast. For the web-based reporting, gagging Olympic athletes during the competition amounts to silencing a source and impedes the newgathering of journalists unable to travel to Sydney or access any other venue.

“It’s shortsighted. They either don’t understand the Internet or don’t know the Internet is legitimate media,” Joe Ferreira, vice president of programming for Sportsline.com, told the Associated Press during the games.

Sportsline.com, Inc. declined to comment on the IOC rules following the conclusion of the games, said Larry Wahl, director of corporate communications. Wahl said the company’s executives planned to address their concerns to the IOC at a December meeting in Switzerland.

The conflict remains between the newsgathering objectives of the press and an owner’s right to exclude people from private property. Now, as corporations own the teams, the stadiums and, importantly, broadcasting and cable television rights to air the games, the opportunity to manage every aspect of the event may prove too tempting. To First Amendment advocates, the tendency of courts to favor the property owner does not leave the press without recourse. Rather, the arena to object to the constraints on newsgathering moves out of the courtroom and into the newsroom.

The Power of the Press

In the past 18 months, credential fights at three venues show how much, or little, muscle the media have when pitted against a private interest.

Former Sports Illustrated auto racing writer Ed Hinton survived a bitter and personal spat with the owner of the Indianapolis Motor Speedway when in May 1999 the owner banned the writer from covering the Indianapolis 500.

Track owner Tony George, fuming for two years over articles Hinton wrote criticizing the safety of auto racing, wrote a letter to a Sports Illustrated editor informing him that Hinton would not be let into the race. The letter gave the magazine the option of sending a writer other than Hinton, who had covered the race since 1975.

With only a few weeks before the race, word quickly spread of the veteran’s potential absence. In fact, Hinton and his editors had arranged for the writer to go to a race that weekend in Charlotte, N.C.

“I was waiting in the airport to hear whether I was in or out,” Hinton said. “I’m standing there with tickets to go to Charlotte and Indy, and the cell phone rings.”

Word came from Indianapolis that George had backed down.

His media brethren stood up against censorship, and threatened a boycott unless Hinton got credentials. Major dailies from coast to coast were poised to bring their reporters home, Hinton said.

“I had not realized just how many papers were about to go out until I got there,” said Hinton, who now covers auto racing for the Chicago Tribune News Service.

“I have felt prouder to be a journalist since May ’99 than any time before,” said the 52-year-old reporter.

One person almost kept probably the best-known reporter from covering the preeminent event in his field. In this case, at least, the power of the press finished first against the power of a private property owner.

“Essentially it’s like his living room,” said Jamin Raskin, a constitutional law professor at American University’s Washington College of Law. The owner can “invite and exclude as he wants.”

Their House

The NCAA invites only 64 teams to the championship tournament. Six wins in March will legitimize a college basketball program. As a coach contemplates what makes for a legitimate contender, Jim Marchiony questions what makes a journalist legitimate.

As the media director of the Division I men’s basketball championship, Marchiony holds the key to the pressroom. But for the past couple years, deciding who gets in has become increasingly difficult. The problem, he said, is space. A typical domed venue has about 600 seats for the media, and the market for press passes is red hot.

Many of the credentials go to the well-established media, like Sports Illustrated and The New York Times, who have covered the tournament since the 1950s, he said. The proliferation of news and sport websites has increased the demand for credentials.

“The real problem is criteria for web-based services,” Marchiony said.

“How do you separate the bona fide people from those who just want to be there? Everyone who has a computer wants to be a journalist.”

As Marchiony explained the present model for issuing credentials, each media outlet receives a specific number of passes and may distribute them as it desires. For example, he said, ESPN gets a set number and among them is one for the ESPN.com writer. Another television network, CBS, which has the exclusive broadcast rights of the Final Four, gave at least one of its passes to the full-time writer from its online companion, Sportsline.com.

Much like the privately operated Indianapolis Motor Speedway, the NCAA can dictate the rules by which the media must play.

“It’s not a crazy notion that intellectual property rights are associated with sporting events,” said Jonathan Albano of Bingham Dana in Boston. As one sign of the broadcaster’s rights, Albano mentioned the copyright notice broadcasters recite during each game.

Albano said a group besieged with requests for credentials may institute reasonable restrictions on access, possibly a first-come, first-serve policy.

At the last two tournaments, Machiony has spoken at length with members of the sports editors association and basketball writers association about the question of who gets in to cover the game. Marchiony has started to prepare credential-issuing guidelines he will introduce at a meeting in December. He solicited input from sports writers and editors, but about six weeks before the meeting had not received any responses.

Marchiony did give some insight on his proposal.

“What I’m thinking about is the rules have to be full-time versus stringers,” he said of the status of the writer. “How much does the media organization staff games in person during the season? I’m not interested in giving credentials to fan-based, chatroom-type sites.”

Whether Marchiony can hand-pick the media coverage of the basketball tournament depends greatly on whether the NCAA is deemed a “state actor” for the purposes of the First Amendment. A courtroom may have to be the appropriate arena to settle this question. The U.S. Supreme Court, however, last year rejected the state actor claim made by a plaintiff who argued since the NCAA receives dues payments from member institution, and those members receive federal funds, the NCAA is thus a state actor. (Smith v. NCAA)

A Crack in the Wall

In western Massachusetts, a web-based high school sports report followed the teams of the Pioneer Valley Conference all the way to the state basketball tournament in March. On the eve of the tournament, the governing organization of high school sports in the state prohibited a MassLive.com reporter from covering the game from the press area. The reporter attempted to cover the game from a seat in the arena, but organizing officials again thwarted the reporter’s effort.

Undeterred, the reporter returned the next day, only to find a representative of the Massachusetts Interscholastic Athletic Association at the door refusing to let the reporter inside.Albano, who represented MassLive.com when they won a court order permitting the reporter to cover the games, said the MIAA had retaliated against the web-based reporter because it found some of the posting on the website objectionable.

Unlike the privately owned speedway, the arena hosting the high school games did not object to MassLive.com’s content. And unlike a well-known auto racing writer, MassLive.com did not have clout of its own, so they turned to the court.

The legal status of the MIAA, considered a state actor since a 1979 Supreme Judicial Court decision, made the preliminary injunction stick, Albano said.

The similarity between the MIAA and the NCAA or Olympic organizers depends on a court. An attempt to make the NCAA or IOC out as state actors may likely fall short.

“This is a Supreme Court that is not inclined to find state action,” said Raskin of the Washington College of Law. “This court is protective of property rights.” Therefore, the professor speculated, the Court would enforce the strictly private owner’s right to exclude the media.

The more conditions placed on the media by sports organizers or stadium owners, the stronger an argument that the media has been forced to sign away its rights, said New York University law professor Diane Zimmerman.

The IOC Rule 59 seemingly tied the hands of media not in Sydney. The current credential rules at the NCAA basketball tournament favor the large-circulation, well-established media. Journalists like Natz and the newspapers that threatened to boycott the Indy 500 have stood up to strong-arm tactics. Zimmerman said the best defense may be the old axiom: the squeaky wheel gets the grease.

“The press has to put aside competitive instincts and be willing to stand up and defend yourself,” she said. “If the press doesn’t stand pat, there’s no end to the clever ways access to information can be restricted by private entities.”