Inside the First Amendment
By Gene Policinski
First Amendment Center
The sports adage “It’s not whether you win or lose, but how you play the game” has a unique link and application to how the future of a free press plays out in the 21st century.
As news organizations — new and traditional — struggle in a down economy and a technology storm to develop financial models that pay the bills, a major question they face is how to “monetize” what the public has been getting at very low cost or free.
Sports news is one of the few online areas that have produced significant Web traffic and income from the earliest Internet days. Sports also is an area where the courts have spoken clearly on ownership of unique content.
Several court decisions have set out the principle that facts cannot be copyrighted — whether it’s the day’s news or the outcome of a basketball game or the final golf scores from a tournament.
But an 11th U.S. Circuit Court of Appeals ruling in 2004, involving Morris Communications and the PGA Tour, held that the PGA’s system of tracking play across an entire golf course during a tournament was something unique and special. The tour owned that unique assembly of facts and information, the court said, and could sell it as it saw fit — but could not be compelled to give it away free, particularly to a competitor.
The NFL, NBA and Major League Baseball all have their own television units, offering all-game packages and other unique programs, marketing their games and athletes directly to fans. There’s now an annual tug-of-war between news media and sports leagues and conferences over ownership of photographs, blogs and live game reports.
When it comes to non-sports news, in a twist, it’s news organizations that gather and provide the unique aspects about the facts of daily life. Traditionally, those operations relied on a combination of circulation and advertising (for TV, ratings and advertising) to generate income and relatively high profits to support that newsgathering and presentation. A “free press” wasn’t really “free for the taking” — though for most of us, the cost was little more than a monthly subscription, a coin in a vending machine or the price of a TV set or radio.
The Web changed all that — and the first reaction by most news organizations was to put their work on the Internet for free, hoping to send users back to their print and broadcast products. It didn’t work that way. “Free press” took on a whole new meaning: “no charge.” Aggravating the situation are non-news operations such as AOL and Google and others that have figured out novel ways to distribute and make money from what they “aggregate” — link to — from a variety of sites and sources.
And therein is the “game” being played out, with serious implications for a free press as the nation’s Founders intended it.
Charles Overby, chairman of the Freedom Forum and CEO of the Newseum, told journalism educators at an August national conference that “a free press does not mean free news. The survival of the press as we know it depends on people paying for it.” Overby cited a recent Annenberg Public Policy Center survey that found 22 percent of respondents had stopped a subscription to a publication because they could get it free online.
On Oct. 9, at a meeting in China, Associated Press chief executive Tom Curley said, “We will no longer tolerate the disconnect between people who devote themselves — at great human and economic cost — to gathering news of public interest and those who profit from it without supporting it.”
A free press not only has to survive, but also has to have sufficient resources to live up to its First Amendment role as a watchdog on government — to be an independent, expert source of information about what government is doing, how the courts are operating and where our tax dollars are going.
Sports organizations, like news organizations, have a bottom line. But when was the last time sports owners, leagues or associations gave away free what they could ticket, license or market?
As news staffs shrink out of economic necessity and news media of all kinds look for new sources of revenue, how the game of “free news v. free press” is played will determine whether in the First Amendment arena we and our fellow citizens win or lose.
Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].