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Announcer [Mary Hartnett]: The broadcasts of Iowa football games by a local radio station has become a legal question in classes at the University of Iowa's College of Law. KCJJ has been airing its own Hawkeye football shows in apparent violation of the University's exclusive agreement with Learfield Communications. Nicholas Johnson is a visiting law professor and a former Commissioner of the Federal Communications Commission. He says the topic has provided a really fascinating issue for his law students. Johnson says the State's interest in protecting exclusive rights could be silencing free speech.
Nicholas Johnson: Clearly we don't have an issue that involves the public health of the people of Iowa, or levels of crime in the state of Iowa. What is the "state interest"? The state interest is in getting an extra $700,000 a year for broadcast rights.
Announcer: UI law professor Nicholas Johnson.
Announcer [Mary Hartnett]: The broadcasts of Iowa football games by a local radio station has become a legal question in classes at the University of Iowa's College of Law. KCJJ has been airing its own Hawkeye football shows in apparent violation of the University's exclusive agreement with Learfield Communications. Visiting law professor Nicholas Johnson says the topic has provided a fascinating issue for his students. He says if the State protects exclusive rights it could silence protected speech.
Nicholas Johnson: Not only is the "state interest" trivial, but as a consequence of the State enforcing this interest it is radically reducing the number of voices and the amount of speech. Because in the past, as I understand it, any radio broadcaster who wanted to come into the stadium could do so for $70,000 a year. And now, as a result of this exclusivity, we're going to go from three voices to one voice.
Announcer: Lawyers for the Big Ten, ABC TV, and ESPN are expected to look into possible copyright violations concerning those broadcasts.
Well, this is really a fascinating case from the standpoint of a law professor who is interested in issues of this kind. It's not at all clear as to how it will come out.
Your first reaction is, "Well, gee, there has to be something wrong with this." But then, of course, you have to come up with a legal theory as to just why that is.
One of the first things you look at is, "Well, is there a copyright issue here?" But, in general, it is very hard to copyright an activity, a live football game, a parade, anything of that sort. You can copyright the broadcast of it, but then the question is, "What does that give you the right to prevent other people from doing?" It clearly gives you the right to keep other people from using your broadcast. KCJJ, for example, could not simply put a jack into the wall and pick up the KXIC broadcast and broadcast it out over the KCJJ transmitter. But the facts of the game can't be copyrighted. The expression can, what it is the on-the-scene sports reporter says, that can be copyrighted. But the fact that Iowa made a touchdown can't be copyrighted. That's a "fact." So copyright is not very useful.
Then there's the question of what's called "unfair competition." And there have, in the past, been cases that are very similar to this, where someone puts up observers around a baseball stadium, and they are not in the stands but they are able to see the game, and they report on it. There are a number of these cases during the Twentieth Century that have found that to be unfair competition.
Clearly, the University of Iowa can control what people do inside the stadium. That you can provide on the ticket. It's like a license, or a condition, of your being there, that you agree not to take photographs, or you agree not to broadcast, or you agree to whatever. So that they can prohibit. The question is, can they prohibit anything that's outside of the stadium, anything that simply relies on the facts, anything that involves getting information off of the Internet, or off of a wire service, or off of a television broadcast of the game, or whatever, so long as it's not actually copying what's there.
The most interesting current issue, for which I give credit to my colleague Professor Randall Bezanson, is the extent to which the First Amendment would today be involved in an issue of this kind, given what the courts have done here.
As you may know, in the area of defamation, it used to be the courts would just say, "Defamation is not protected speech, and therefore we do not even get to a First Amendment issue. It is like obscenity, or fighting words." Then, in New York Times v. Sullivan, the Court said, "We start off with the proposition that all speech is protected speech under the First Amendment, and then the question is, 'How much of a state interest is there in suppressing that speech for some other reason?'" Does it involve an outbreak of smallpox, or an outbreak of drive-by shootings, or something like that, that the state would have an interest in?
So here, if that same approach were to be taken, you would say, "KCJJ has a First Amendment right to speak over its airwaves, and to describe the game, and the question now is, 'Is there a counterbalancing state interest of sufficient importance to silence KCJJ, to suppress their speech?'" Clearly we don't have an issue that involves the public health of the people of Iowa, or levels of crime in the state of Iowa. What is the "state interest"? The state interest is in getting an extra $700,000 a year for broadcast rights.
It's a relatively trivial matter -- in terms of the kinds of things that normally involve a state interest. This is nothing that affects the people of the state of Iowa. It's a simple financial matter that would have to be argued to be of sufficient merit to squash out the preferred rights of the First Amendment. And if a court approaches it in that way it would be highly unlikely it would do that, especially since, not only is the state interest trivial, but as a consequence of the state enforcing this interest it is radically reducing the number of voices and the amount of speech. Because in the past, as I understand it, essentially any radio broadcaster who wanted to come into the stadium could do so for $70,000 a year. And we had three of them. Now as a result of this exclusivity we are going to go from three voices to one voice. So you have a clear suppression of speech, you have a trivial state interest, and you have very substantial First Amendment interests.
That does not mean that KCJJ wins. What it means is that we have some wonderful hypothetical cases to discuss in the College of Law classrooms over here as I have been doing with my course in Law of Electronic Media.
. . .
The fact that exclusivity contracts are common is not controlling. Driving on Interstate 80 at excessive speed is common, but that doesn't mean that that gets you off when you're picked up by the Highway Patrol. The law changes. Defamation was something for which one could recover against newspapers until New York Times v. Sullivan came along. So that's the interesting issue here, whether or not the court would be willing to extend to unfair competition claims the kind of First Amendment interests that have applied in the defamation area. Would they do a similar kind of "strict scrutiny" analysis of the ability of the State to limit speech in the name of "unfair competition"?
. . .
There are a number of old cases that involve unfair competition. But I am unaware of any that involve this First Amendment strict scrutiny analysis in the context of unfair competition. But I would have to concede that I have not done a thorough job of legal research on that. There may very well be cases, but I am not, at this point, aware of any.
. . .
It's not a matter of "how fast it's broadcast" in the sense of "Do you have a seven-second delay, or a 15-minute delay, or something of that sort?" But we need to distinguish, as I have said, the facts of the game from a reporter's commentary. Take, for example, the fact that the game is being played. If I want to broadcast over WSUI the fact that the University of Iowa is going to play a football game this Saturday, there's no way the University can prevent my saying that. If I want to broadcast the fact that -- because from where my house is I can hear the stadium roar -- that Iowa must have just made a touchdown, there's no way that that can be prevented. So that's the thing we have to look at. Are we talking about "facts"? Are we talking about the expression of the reporter? What exactly are you talking about?
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