Is high school football a news event or a commodity?

High school football games are played on publicly subsidized fields, and organized by publicly salaried coaches and athletic directors. Can a state’s high school athletic association sign away exclusive broadcast rights for these intrinsically public events to a single for-profit contractor?

The 7th U.S. Circuit Court of Appeals is poised to answer that question in the case of Wisconsin Interscholastic Athletic Association v. Gannett Co., argued earlier this month before a three-judge panel in Chicago.

The case originated when a Gannett newspaper in Appleton, Wis., live-streamed four local high school football games on its website. The WIAA had sold the rights to postseason games to a private vendor, American Hi-Fi, which demanded that the newspaper pay a licensing fee or cease airing the games.

In June 2010, a federal district judge sided with the athletic association and found no violation of the First Amendment or Equal Protection Clause in the exclusive webcasting arrangement. Gannett appealed, and its case was heard Jan. 14 before the Seventh Circuit.

While it is doubtful that James Madison was contemplating Internet streaming of the Quad-A semifinals while drafting the Bill of Rights, the broader constitutional principles at issue are significant — and fascinating.

Gannett, represented by prominent media-law expert Robert Dreps, argues that a high school football game is fundamentally a news event. While the government may impose some rational limitations on broadcasters for logistical reasons — e.g., limiting the number of camera crews in a small courtroom — it may not condition the exercise of First Amendment rights on the ability to pay, or make discriminatory distinctions between otherwise-comparable media entities. Once it is established that there is no logistical reason to preclude Gannett from having cameras at the game, then the government may not dictate what scenes from the game, or how much of it, Gannett decides is newsworthy.

The WIAA and American Hi-Fi say all this hifalutin talk about freedom of the press and newsworthiness is hogwash, and that there’s a big difference between covering a news event journalistically versus offering the entire event as entertainment viewing. So far, the courts have agreed with them.

Notably, the WIAA policy at issue did not merely ban the webcasting of complete games; it purported to ban the distribution of any video clip longer than two minutes, in any medium and for any purpose. The district court was able to discount what Gannett wants to do as a profit-seeking entertainment enterprise rather than journalism. But there are times when a more indisputably journalistic use (such as a documentary film, for instance) might require more than a two-minute snippet.

If the appeals court affirms the lower court’s relatively narrow ruling in favor of the athletic association, it still will not answer the more salient question for routine journalistic coverage: namely,whether the Constitution prohibits seemingly arbitrary limits on the length of highlight clips and the duration for which clips can remain web-posted. That is an issue with far broader implications beyond Wisconsin high schools, as big-time college conferences are increasingly imposing some of the same restrictions on the media’s use of images from their sporting events.