10-2627 WIAA v. Gannet Co., Inc.

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Constitutional Law
First Amendment; state as a proprietor

A state may enter into an exclusive contract to broadcast an event.

“On appeal, the only issue presented concerns the First Amendment as it might apply to WIAA’s internet streaming rules. Gannett argues that WIAA, a state actor, cannot (ever, it seems) enter into exclusive contracts with a private company for the purpose of broadcasting entire events online, or, more broadly yet, to raise revenue. Gannett does not challenge other restrictions on media access to WIAA’s events, or even WIAA’s other exclusive licenses, like those WIAA has for television and radio broadcast. But the implications of Gannett’s arguments are staggering: if it is correct, then no state actor may ever earn revenue from something that the press might want to broadcast in its entirety. That is not correct. Gannett’s theory that coverage and broadcast are identical is both analytically flawed and foreclosed by Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). Simply put, streaming or broadcasting an event is not the same thing as reporting on or describing it.

In addition, Gannett overlooks the importance of the distinction between state-as-regulator and state-as- proprietor, which in turn leads it to fail to appreciate the fact that tournament games are a performance product of WIAA that it has the right to control. Thus, because the exclusive agreements between WIAA and American-HiFi are otherwise not contested, and we find no reason in the First Amendment to change them, we affirm the district court’s judgment for WIAA.”

Affirmed.

10-2627 WIAA v. Gannet Co., Inc.

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Wood, J.

Tags: 7th Circuit Digest, Civil Digest, Constitutional Digest

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