From the Winter 2008 issue of The News Media & The Law, page 10.
To participate in any sport one needs to know the rules of the game. The same is true in any legal argument. So before the cases of interscholastic athletic associations versus the press can be discussed, certain legal concepts must be understood.
The "right to contract" has been well established in American jurisprudence. Predating that right is one of "property rights."
Property rights are rights over anything of value, which are enforceable against others; while contractual rights are enforceable against parties to the contract. Property rights may be acquired through contract.
Just because someone declares they own the Brooklyn Bridge does not mean that they legally do. If they do actually hold legal title to that piece of property then they may contract to sell it.
If a dispute arises over a legally binding contract then property and contract law would operate together, allowing the parties to seek enforcement for breach of the contract as well as determining ownership of the bridge.
To complicate matters, what happens if the non-legal owner of the bridge contracts with someone to collect tolls on the bridge? While the non-owner is not transferring any property rights to the bridge itself, the real owner has a very real right to object to the granting of such a "license."
So what does the dispute between high school athletic associations and the press have to do with the Brooklyn Bridge? By now I hope your answer will be a resounding – "everything!" The principles of property, contracts and licensing are what these cases are all about.
The first question that must be answered: does a high school athletic association own the property rights to its players and facilities? The answer to that question will be based on a number of factors and has far reaching implications in all of these cases. Whether or not the association is considered a "state actor" (a legal term used to define an entity acting on behalf of the government thus triggering — in these cases — "free press" and "equal protection" implications for the aggrieved party).
There have been a number of contradictory decisions from the U.S. Supreme Court, which (in a case brought on a different issue) found the Tennessee High School Athletic Association to be a state actor; as opposed to the Michigan Supreme Court, which held that the Michigan High School Athletic Association was not. In answering the constitutional questions, a court will have to decide whether or not a state high school athletic association has the authority to impose restrictions on the media in both gathering and disseminating the news; as well as whether it has the right to contract out the exclusive license to cover its events. Given that the events are held at mostly public schools, involve amateur athletes and ultimately conclude in a "state" championship, it will be more difficult for the athletic associations to maintain that they have such a right.
As for the free press issue, the courts have found that government may impose reasonable time, place and manner restrictions on the press if those restrictions are context neutral and narrowly tailored to serve a significant governmental objective, infringing speech rights no more than necessary in the furtherance of that interest.
In these cases, it appears that by limiting access to events through the credentialing process, the underlying motive of the athletic associations is merely a commercial, as opposed to a more signfiicant interest. Therefore if they are deemed to be a state actor they would not prevail under the free speech analysis. Applying the same scrutiny to the credentialing language prohibiting any "secondary use" of photographs by the news media would in all probability be held as an unconstitutional prior restraint.
An equal protection analysis would also bring about the same result if it can be shown that the athletic associations are state actors licensing exclusive or privileged access to events to one set of photographers (the photography company contracted with to photograph the events), thus allowing those photographers access to newsworthy and ostensibly public events, while denying the same access to press photographers.
Those legal outcomes may ultimately lead to contractual differences between the athletic associations and those holding exclusive licenses to cover the events. Should the media prevail in its actions it would not be surprising to see those license holders then commencing action against the athletic associations both for breach of contract and specific enforcement of their licensing agreements.
While these disputes lie between the news organizations, the athletic associations and the licensed businesses, it is the photographers at the events, the high school athletes and the public at large who will ultimately be affected. The final analysis demonstrates that it is extremely important for anyone wishing to contract to know what property rights they actually own and whether or not those contracts interfere with the rights of others.
Mickey H. Osterreicher is general counsel for the National Press Photographers Association (NPPA) and a member of the New York State Bar Association Media Law Committee. He has been a photojournalist for more than 30 years and has been involved in a number of these athletic association cases throughout the country.