In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2627
W ISCONSIN INTERSCHOLASTIC
A THLETIC A SSOCIATION, and
A MERICAN-H IF I, INC.,
Plaintiffs-Appellees,
v.
G ANNETT C O ., INC., and W ISCONSIN
N EWSPAPER A SSOCIATION,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09-cv-155-wmc—William M. Conley, Chief Judge.
A RGUED JANUARY 14, 2011—D ECIDED A UGUST 24, 2011
Before B AUER, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. As the governing body for middle
and high school athletic programs in Wisconsin, the
Wisconsin Interscholastic Athletic Association (WIAA or
Association) sponsors statewide post-season tourna-
ments. In 2005, WIAA contracted with American-HiFi,
2 No. 10-2627
a video production company, to stream its tournament
events online. Under this contract, American-HiFi has
an exclusive right to stream nearly all WIAA tourna-
ment games. If American-HiFi elects not to stream a
game, other broadcasters may do so after obtaining
permission and paying a fee. Notably, the exclusive
broadcast agreement between American-HiFi and WIAA
concerns entire game transmission; it does not prohibit
media coverage, photography, or interviews before or
after games. Private media may also broadcast up to
two minutes of a game, or write or blog about it as they
see fit, so long as they do not engage in “play-by-play”
transmission.
Taking the position that these exclusive license agree-
ments violate a supposed First Amendment right to
broadcast entire performances, newspapers owned by
Gannett Co., Inc., decided to stream four WIAA tourna-
ment games without either obtaining consent or paying
the fee. In response, WIAA filed this declaratory judg-
ment action in state court asserting its right to grant
exclusive licenses. After Gannett removed the case to
federal court, the district court entered summary judg-
ment in favor of WIAA.
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 con-
tracts with a private company for the purpose of broad-
casting entire events online, or, more broadly yet, to
raise revenue. Gannett does not challenge other restric-
No. 10-2627 3
tions 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- propri-
etor, 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.
I
WIAA is a voluntary, nonprofit organization com-
prised of 506 public and private high schools and
117 junior high and middle schools in Wisconsin. Other
than a few charter and online schools, all public high
schools are members of WIAA. The Association’s pur-
pose is to govern, regulate, and control interscholastic
sports in a manner that promotes the ideals of member
schools, such as good citizenship and sportsmanship.
4 No. 10-2627
Another important goal is to create opportunities for
schools to participate equally in athletics. WIAA accom-
plishes this by promulgating uniform statewide
standards for competition and participation. The parties
have stipulated that WIAA is a state actor. This means
that its actions are constrained by the First Amendment.
(We note that in other cases where courts had to decide
if similar organizations were state actors, the answer
has been yes. See, e.g., Brentwood Acad. v. Tennessee Second-
ary Sch. Athletic Ass’n, 531 U.S. 288, 298 (2001); Crane v.
Indiana High Sch. Athletic Ass’n, 975 F.2d 1315 (7th Cir.
1992).)
Though WIAA regulates both regular season games
and post-season tournaments, it sponsors only the post-
season tournaments, including regional and sectional
events and the state championships. The dispute here
concerns tournament games, which alone are subject to
the Association’s “Media Policies Reference Guide.” The
Media Policies are “produced to inform statewide
media of WIAA policies in effect for all levels of State
Tournament Series competition” and to “assist members
of the media in providing comprehensive coverage to
their communities.” Many provisions in the Media
Policies regulate press access but are not included in
the present dispute: media must obtain credentials to
cover a game, and each outlet may obtain only a
limited number of spots (typically two per media outlet,
including internet sites, but five for daily newspapers);
credentialed media are permitted to take photographs,
but must shoot in designated locations; and pre- and post-
game interviews are permitted, but must be done
at specified locations and times.
No. 10-2627 5
The Media Policies also include “Tournament Transmis-
sion Policies” applicable to radio, television, cable, and
internet transmissions. These transmission rules reflect
the underlying contracts WIAA has signed with private
companies for the exclusive broadcasts of some sports.
Those agreements stipulate that WIAA and “its exclusive
rights partners retain the rights to all commercial use
of video, audio, or textual play-by-play transmitted at a
WIAA Tournament Series event.” The Media Policies
further provide that WIAA “owns the rights to transmit,
upload, stream or display content live during WIAA
events and reserves the right to grant exclusive and
nonexclusive rights or not grant those rights on an event-
by-event basis.”
The Media Policies have specific provisions for com-
mercial use of video; these apply both to television and
online broadcast:
A. There may not be live coverage of any live game
action during the contests. “Live coverage” is defined
as any activity which occurs while a game or meet is
in progress. Stations or Web sites may use a back-
drop of live action for reports from a tournament
facility provided there is no play-by-play commentary
and the report is limited to regularly scheduled
news or sports programs and are [sic] no more than
two minutes of a program which is any length.
B. Use of film, video, audio, tape, etc., is limited to
regularly scheduled news, sports programs or
Internet site stories, and use of such content is limited
to no more than two minutes of a web stream or
6 No. 10-2627
program which is any length. Unless written approval
is granted from the WIAA office, use of more than
two minutes of film, video, audio, tape, or stream,
etc., beyond five days from the last day of a tourna-
ment is prohibited without written consent of the
WIAA.
These two-minute rules pertain to a transmission by
broadcast or streaming (that is, to “uses”), but they do not
limit recording. Thus, a news agency might potentially
record an entire game and then review and edit it down
to the two minutes it would like to use later.
The Media Policies include procedures for obtaining
permission to stream a game if American-HiFi is not
streaming it, or for requesting the broadcast of more
than two minutes of a game. All media interested in
“video transmission” of a WIAA tournament event must
make arrangements with American-HiFi. Live or tape-
delayed video transmission of games is prohibited with-
out consent. When a media organization gets consent
and streams a game, WIAA charges a set fee: $250 if
one camera is used and $1,500 if more than one camera
is used. The master copy of the video must be sent to
American-HiFi, but the party who initially recorded it
is entitled to a 20% royalty on any sale of that game to
a third-party network or broadcaster.
Exclusive broadcast agreements are not new for WIAA.
Quincy Newspapers, Inc., for example, has had an ex-
clusive agreement to televise boys’ basketball since 1968;
it expanded that arrangement to girls’ basketball and
hockey in the 1980s. Likewise, Fox Sports Network Wis-
No. 10-2627 7
consin has had an exclusive contract to broadcast the
state football finals since 2001. These rights naturally
come with a price tag; both Quincy and Fox pay WIAA
annually for them. In 2004, WIAA began to investigate
how to improve upon its existing arrangements. First, it
wanted to increase its revenues, especially since Quincy
had recently negotiated for a much lower annual fee.
Second, WIAA wanted to increase exposure to sports
like wrestling or swimming that traditionally have
received less coverage. An opportunity to make improve-
ments on both of these fronts came in 2005 when
American-HiFi’s president submitted a proposal to
deliver high-quality production, distribution, and trans-
mission of WIAA events online. Subject to existing con-
tracts like those just mentioned, in 2005 WIAA entered
into a 10-year agreement with American-HiFi that gave
the latter the exclusive rights to stream events online,
but also set long-term production goals to ensure that
the minor sports would receive additional exposure.
(American-HiFi services this contract through its subsid-
iary When We Were Young Productions, but this dis-
tinction is immaterial, and so we refer to American-
HiFi throughout.) To facilitate centralized viewing of
games, American-HiFi created and manages WIAA’s
web portal, www.WIAA.tv, which contains all of
WIAA’s live broadcasts and sports coverage. In some
instances, as contemplated by the 20% royalty, American-
HiFi acts as WIAA’s agent and sells further broad-
cast rights to third parties like Fox. Nonetheless, WIAA
retains ultimate control over the web portal and
ensures that any content is consistent with its purpose
and mission.
8 No. 10-2627
This scheme may have suited WIAA well, but it was
not popular with some newspapers in Wisconsin. The
present case arose when, in an act of protest, one of
Gannett’s local newspapers deliberately streamed four
playoff football games online without American-
HiFi’s consent and then refused to pay any fee. WIAA
responded by filing an action for a declaratory judgment
in state court. In its complaint, WIAA asked the court
to declare that it has “ownership rights in any transmis-
sion, internet stream, photo, image, film, audiotape,
writing, drawing or other depiction or description of
any game” and “that it has the right to grant exclusive
rights to others.”
Rather than responding, Gannett, along with its co-
defendant, the Wisconsin Newspaper Association
(WNA), removed the case to federal court. (We refer
to the two defendants collectively as Gannett unless
the context requires greater specificity.) In support of
federal jurisdiction, Gannett argued that WIAA’s claim
to ownership rights was really a copyright claim and
thus WIAA’s apparent state-law claim was “completely
preempted” by the Copyright Act, 17 U.S.C. §§ 101 et seq.
In its answer, Gannett asserted counterclaims chal-
lenging three aspects of the Media Policies: (1) restric-
tions on taking and selling photographs; (2) the prohibi-
tion on “text transmission” (or live-blogging) of games
under the definition of “play-by-play” used to dis-
tinguish permissible periodic updates from text trans-
mission; and (3) the prohibition on streaming tournament
games online, and the consent and fee requirements
for streaming residual tournament games not broadcast
No. 10-2627 9
by American-HiFi. These Policies, Gannett contended,
gave rise to three actionable federal claims; two under
42 U.S.C. § 1983 for violations of the First Amendment
right to freedom of the press and the Fourteenth Amend-
ment’s Equal Protection Clause; and one under the Copy-
right Act, on the theory that the newspapers owned
any copyright in the games they had streamed without
permission.
WIAA responded by amending its complaint to
include three claims that narrowed its original complaint
somewhat: it asserted that it had the right to exclusive
control of the transmission of tournament games, the
right to grant exclusive licenses, and the right to charge
licensing or transmission fees. It also added a fourth
claim, seeking a declaration that its “current policies
concerning the internet transmission of its WIAA-spon-
sored tournament games do not violate Defendants’ rights”
under the First or Fourteenth Amendments or any
other constitutional or statutory provision.
Both parties moved for summary judgment, and the
district court entered judgment for WIAA. In so doing,
the court noted that both parties had abandoned any
claims related to the photography policy and forfeited
any arguments related to the definition of “play-by-play”
in the live-blogging policy. The only issues left were (1)
whether the exclusive contract for internet streaming
violates the First or Fourteenth Amendments, (2) whether
the fee charged to newspapers to stream games that
American-HiFi elects not to broadcast violates the First
Amendment, (3) whether WIAA has too much discretion
10 No. 10-2627
to refuse licenses to media companies that want to
stream games, and (4) whether the newspapers have a
copyright in the four games they streamed without con-
sent. After engaging in a thorough “forum analysis” in
response to Gannett’s argument that WIAA has created
a designated public forum for media coverage of tourna-
ment events, the district court found media access at
tournaments to be a “nonpublic forum”and evaluated
the First Amendment issues for reasonableness and
viewpoint neutrality. Finding those standards easily met
for the exclusive contract, the district court quickly dis-
posed of the remaining issues. Gannett now appeals.
II
Before proceeding to the merits of the appeal, we must
explain why we have concluded that the federal courts
have jurisdiction over this dispute. Throughout these
proceedings, the basis of federal jurisdiction has been
uncertain, and the district court never ruled on it explic-
itly. The parties are not diverse, which means that removal
to the district court must be based upon a federal question.
See 28 U.S.C. §§ 1331, 1441(b). The federal question must be
part of the plaintiff’s well-pleaded complaint; jurisdiction
may not be “predicated on an actual or anticipated de-
fense.” Vaden v. Discover Bank, 129 S. Ct. 1262, 1272
(2009), citing Louisville & Nashville R.R. Co. v. Mottley, 211
U.S. 149 (1908).
At oral argument, we noted that the parties had failed
to specify exactly what it was that supported federal
jurisdiction. Gannett offered the theory that WIAA
No. 10-2627 11
was “really” raising a copyright claim in state court, and
that such a claim was necessarily federal and thus “com-
pletely preempted.” WIAA said little, assuming that
its request for a declaration stating that its contracts
did not violate the First Amendment was enough to
bring the federal issue into the complaint. In order to be
sure that WIAA was not in essence doing the same thing
as the Mottleys (i.e. that it was not anticipating a defense
to the enforceability of its contracts), we asked for sup-
plemental briefing. We also wanted to ensure that the
rule of T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir. 1964)
(Friendly, J.), did not reveal this case to be one arising
solely under state law. See also International Armor &
Limousine Co. v. Moloney Coachbuilders, Inc., 272 F.3d 912,
915-16 (7th Cir. 2001). Under T.B. Harms, a claim “arises
under” the Copyright Act “if and only if the complaint
is for a remedy expressly granted by the Act,” like a
suit for infringement or to recoup royalties. 339 F.2d at
828. A contract dispute about who owns a particular
copyright does not give rise to jurisdiction. Id. at 824;
Nova Design Build, Inc. v. Grace Hotels, LLC, No. 10-1738,
2011 WL 3084929, at *2 (7th Cir. July 26, 2011).
We address the Eliscu theory first. When all is said
and done, we are convinced that this case has nothing
to do with copyright. One prerequisite to bringing a
suit for infringement is that a party register its copy-
right. 17 U.S.C. § 411(a). Though that rule is not juris-
dictional, see Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237
(2010), it still reflects an important case-processing princi-
ple, and it is notable that neither WIAA or Gannett
has registered anything here. More than that, neither
12 No. 10-2627
party has briefed any issues related to copyright in
this court. Indeed, even the status of the four contested
videos is not within the ambit of this appeal.
That seriously undermines Gannett’s elaborate theory
that original federal question jurisdiction can be based
on the idea of “artful pleading” or “complete preemption.”
See Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1, 24 (1983). As we have noted before, the
phrase “ ‘complete preemption’ is a misnomer, having
nothing to do with preemption and everything to do
with federal occupation of a field. The name misleads
because, when federal law occupies the field (as in
labor law), every claim arises under federal law.” Lehmann
v. Brown, 230 F.3d 916, 919 (7th Cir. 2000). Ordinary, or
“conflict” preemption is a federal defense to a plain-
tiff’s state-law claim and thus cannot serve as a basis
for the federal court’s power under § 1331. Vorhees v.
Naper Aero Club, Inc., 272 F.3d 398, 403 (7th Cir. 2001).
We are aware that some courts have held, either
explicitly or implicitly, that certain state-law claims
related to the media’s use of a performance have been
completely preempted by the Copyright Act. See, e.g.,
Ritchie v. Williams, 395 F.3d 283, 287-89 (6th Cir. 2005);
Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296, 303-
06 (2d Cir. 2004); Rosciszewski v. Arete Assocs., Inc., 1
F.3d 225, 230-33 (4th Cir. 1993). We are not so certain.
Cf. Cambridge Literary Props., Ltd. v. W. Goebel
Porzellanfabrik, 510 F.3d 77, 99-102 (1st Cir. 2007) (Cyr, J.,
dissenting) (discussing narrowness of complete preemp-
tion and arguing against finding it under the Copyright
Act for a dispute between co-owners of a work); Vorhees,
No. 10-2627 13
272 F.3d at 403-04 (describing the rarity of complete
preemption); Elizabeth Helmer, Note, The Ever-Ex-
panding Complete Preemption Doctrine and The Copyright
Act: Is this What Congress Really Wanted?, 7 N.C. J. L. &
T ECH. 205, 227-30 (2005). That said, this is not the case
in which further consideration of that question is neces-
sary. It turns out here that the Copyright Act is a
red herring. The question before us is whether WIAA’s
request for a declaratory judgment that settles Gannett’s
First Amendment arguments is within federal jurisdic-
tion. Whether the contents of the broadcasts were pro-
tected by copyright is beside the point.
The pivotal fact here is that WIAA is suing for a declara-
tory judgment. This is not, of course, to say that the
Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, fur-
nishes an independent basis of jurisdiction; it does not.
See Medical Assurance Co., Inc. v. Hellman, 610 F.3d 371,
377 (7th Cir. 2010). But the proper analysis of jurisdic-
tional questions, including in particular Mottley’s well-
pleaded complaint rule, operates uniquely in this con-
text. Here, the “realistic position of the parties is reversed,”
Public Serv. Comm’n v. Wycoff Co., Inc., 344 U.S. 237, 248
(1952), and to determine “whether a declaratory-judgment
action comes within federal jurisdiction, a court must
dig below the surface of the complaint and look at
the underlying controversy. If a well-pleaded complaint
by the defendant (the ‘natural’ plaintiff) would have
arisen under federal law, then the court has jurisdiction
when the ‘natural’ defendant brings a declaratory-judg-
ment suit.” NewPage Wis. Sys. Inc. v. United Steel, Paper &
Forestry, No. 10-2887, 2011 WL 2684910, at *2 (7th Cir.
14 No. 10-2627
July 12, 2011); see also Samuel C. Johnson 1998 Trust v.
Bayfield County, Nos. 09-2876, 09-2879, 2011 WL 2417020,
at *1 (7th Cir. June 17, 2011).
We turn to WIAA’s amended complaint, which is the
operative document. Grubbs v. General Elec. Credit Corp.,
405 U.S. 699, 705-06 (1972); cf. Barbara v. New York Stock
Exchange, Inc., 99 F.3d 49, 56 (2d Cir. 1996) (“[I]f a district
court erroneously exercises removal jurisdiction over
an action, and the plaintiff voluntarily amends the com-
plaint to allege federal claims, we will not remand for
want of jurisdiction.”). WIAA’s amended complaint
plainly invokes federal law: it wants a declaration that
its current policies and contracts do not violate Gannett’s
or any other defendant’s rights under the First or Four-
teenth Amendment. The issue is whether that federal
element is present by way of a claim or if it is just an
anticipated defense in a presumed suit brought by
Gannett against WIAA. We conclude that it is the for-
mer. As Gannett’s counterclaims indicate, the newspapers
believe that section 1983 provides them with a right of
action. In essence, they are charging that a state actor
(WIAA) is unlawfully censoring their speech through its
Media Policies. That is a claim that arises under federal
law. See generally Sorrell v. IMS Health Inc., 131 S. Ct.
2653 (2011); Citizens United v. Federal Election Comm’n, 130
S. Ct. 876 (2010).
In fact, any worries that one might have about whether
this “presumed suit” by the newspapers is wholly imagi-
nary is belied by the record before us. Months before
WIAA filed its initial complaint, the Newspaper Associa-
No. 10-2627 15
tion sent WIAA a letter challenging on First Amend-
ment grounds the Media Policies’ treatment of internet
streaming and WIAA’s contract with American-HiFi.
The letter demanded that WIAA “rescind its [‘patently
unconstitutional’] media policies on internet streaming.”
After the parties met, WNA was still dissatisfied and sent
another letter indicating that it was “time to challenge,
and if necessary, test in court, WIAA’s authority to grant
exclusive coverage rights.” The federal claim in the
amended complaint responds directly to these threats.
For these reasons, we are satisfied WIAA’s complaint
for a declaratory judgment that its Media Policies are
compatible with the First Amendment states a claim
arising under federal law. We therefore move on to the
merits.
III
As this suit has proceeded through the courts the
precise issue at stake has been a moving target. We noted
a moment ago that Gannett and WNA have abandoned
any claims they might have had to copyright protection
for the four videos streamed by the newspapers. Their
equal protection contentions have met the same fate. This
appeal thus has been reduced to the following question:
Whether WIAA’s contract granting American-HiFi
the exclusive right to stream tournament games and
requiring consent and payment for third-party broadcasts
of entire games violates the First Amendment.
As the briefing reflects, there are a litany of possible
First Amendment doctrines that could be at play
16 No. 10-2627
when answering such a question. The real challenge is to
understand what really needs to be decided and what is
peripheral. Viewed in the proper light, as we explain
below, WIAA’s Media Policies do not, as Gannett, WNA,
and additional newspapers as amici fear, threaten the
fundamental right of the press to comment on and
cover school sporting events. An exclusive contract for
transmission of an event is not a gag order or “prior
restraint” on speech about government activities. The
media are free under the policy to talk and write about
the events to their hearts’ content. What they cannot do
is to appropriate the entertainment product that WIAA
has created without paying for it. WIAA has the right
to package and distribute its performance; nothing in
the First Amendment confers on the media an affirma-
tive right to broadcast entire performances.
A
We begin by considering the kind of government
action at issue here. NASA v. Nelson, 131 S. Ct. 746, 757
(2011). State ownership or control of property does not
automatically open that property to the public wholesale.
United States Postal Serv. v. Council of Greenburgh Civic
Ass’ns, 453 U.S. 114, 129 (1981). Where the state acts as
a proprietor, rather than a regulator, “its action will not
be subjected to the heightened review to which its
actions as a lawmaker may be subject.” International Soc.
for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992).
Accordingly, “time and again” courts have recognized
that the government has a “much freer hand,” Nelson,
No. 10-2627 17
131 S. Ct. at 757, when it operates in a proprietary mode
rather than as a regulator. Lee, 505 U.S. at 678; see also,
e.g., United States v. Kokinda, 497 U.S. 720, 725-26 (1990)
(plurality); Lehman v. City of Shaker Heights, 418 U.S. 298,
303 (1974) (plurality); Ridley v. Massachusetts Bay Transp.
Auth., 390 F.3d 65, 79 (1st Cir. 2004) (“[A] lower level of
scrutiny usually applies when the government acts
as proprietor.”). That said, even when acting in a propri-
etary capacity, state actors do not “enjoy absolute freedom
from First Amendment constraints.” Kokinda, 497 U.S. at
725. In this situation, the First Amendment mandates
that government action be reasonable, i.e., it may not be
“arbitrary, capricious, or invidious,” Lehman, 418 U.S.
at 303; Kokinda, 497 U.S. at 726.
Gannett argues that, at a minimum, WIAA cannot
engage in discrimination on the basis of viewpoint when
granting exclusive license contracts or in determining
whether to approve a request to stream a game not
being broadcast by American-HiFi. But we are at a loss
to see any viewpoint bias in the Media Policies. As far
as we can tell, Al-Jazeera would have the same right
to purchase media access to WIAA’s games as the Chris-
tian Broadcasting Network, Comedy Central, Fox, or
MSNBC. Gannett has equated viewpoint with ex-
clusivity for the primary contract, but that is really just
a global challenge to WIAA’s right to enter into any
broadcast agreement at all; we address that point below.
Just in case we have missed something, we note further
that while the First Amendment requires viewpoint
neutrality in many other contexts, that constraint is
inapplicable here. Instead, Arkansas Educational Television
18 No. 10-2627
Commission v. Forbes, 523 U.S. 666 (1998), holds that
in the sort of situation presented before us, viewpoint
neutrality is inapplicable. In Forbes, the Supreme Court
described how the First Amendment operates in the
context of broadcast journalism for a publicly owned
television station. Outside of a political debate, which
has a unique function in our democracy, see id. at 675-76,
decisions about who gets air-time or what to broadcast
are left to the journalistic and editorial judgment of
the broadcaster, unconstrained by a viewpoint-neutrality
requirement. See id. at 673 (“As a general rule, the
nature of editorial discretion counsels against subjecting
broadcasters to claims of viewpoint discrimination.”).
Though WIAA is not the broadcaster of a television
show in the traditional sense, we find no meaningful
distinction between the online setting and more tradi-
tional media. Through its contract with American-
HiFi—like its arrangements with Quincy and Fox—rather
than producing or editing footage by itself, WIAA maxi-
mizes efficiency by using a specialist that remains
subject to WIAA’s authority and control. A glance at
the “WIAA Network” web portal, a part of the
“WIAA School Broadcasting Program,” confirms this
understanding. The website functions as an online “chan-
nel” where all WIAA “network events,” i.e., tournament
games, can be streamed. Notably, each page on the site
is headlined with WIAA logo and often a banner
bearing the Association’s name. As further evidence of
the school-based collaboration and editorial judgment
involved in creating this internet “television station,”
other school events—like plays, band concerts, gradua-
No. 10-2627 19
tion speeches, spelling bees, and even an anti-bullying
speaker—are featured on WIAA.tv.
When “establishing and implementing certain govern-
mental functions, the government, including its educa-
tional institutions, has the discretion to promote
policies and values of its own choosing free from . . . the
viewpoint neutrality requirement.” Chiras v. Miller, 432
F.3d 606, 613 (5th Cir. 2005). What is important for pur-
poses of the First Amendment is that the government
is sending a message, which can come by funding a
group or project, sponsoring an event or performance,
or by selecting and editing content. See Forbes, 523 U.S.
at 674 (“Although programming decisions often
involve the compilation of the speech of third parties, the
decisions nonetheless constitute communicative acts.”);
Chicago Acorn v. Metro. Pier & Exposition Auth. (Navy
Pier), 150 F.3d 695, 701 (7th Cir. 1998) (“Whenever the
government is in the business of speech, whether it is
producing television programs or operating a museum
or making grants or running schools, the exercise of
editorial judgment is inescapable.”). It makes no dif-
ference whether the state conveys this message directly
or instead “chooses to employ private speakers to
transmit its message.” Chiras, 432 F.3d at 613; cf.
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
833 (1995) (explaining that when government uses
“private speakers to transmit specific information per-
taining to its own program,” it has the right to control
that message based upon content or viewpoint).
Indeed, even Gannett concedes that WIAA enters into
exclusive media contracts to avoid losing “control over
20 No. 10-2627
the message” expressed at events, which is why
WIAA retains the right to revoke transmission rights if
a broadcaster transmits “content or comments considered
inappropriate or incompatible with the educational
integrity” of a WIAA event. (Though we find WIAA to
be engaged in some expression, consistent with Forbes,
we see no need to go further and consider whether
the Media Policies constitute “government speech” in the
stronger sense described in Pleasant Grove v. Summum,
129 S. Ct. 1125, 1131 (2009); such a conclusion would
remove any First Amendment scrutiny from this con-
text altogether.)
In an effort to convince us that heightened scrutiny is
warranted, Gannett implores us to engage in “forum
analysis” and classify some aspect—we are not sure
exactly which—of the Media Policies as a “designated
public forum.” We find forum analysis unhelpful here,
and so we do not pursue that line of inquiry. See Forbes,
523 U.S. at 666 (concluding that “public broadcasting as
a general matter does not lend itself to scrutiny under
the forum doctrine”); Chiras, 432 F.3d at 613 (inter-
preting Forbes to exclude forum analysis in a public
school context); cf. Illinois Dunesland Pres. Soc. v. Illinois
Dep’t of Nat. Res., 584 F.3d 719, 723-24 (7th Cir. 2009)
(discussing shortcomings of forum analysis); Ridley, 390
F.3d at 75 (noting that forum analysis “has been criticized
as unhelpful in many contexts,” and particularly where
the government is operating in a proprietary capacity).
No. 10-2627 21
B
Now that we have established that WIAA is func-
tioning as the creator and disseminator of content, we
can identify the Supreme Court’s decision in Zacchini v.
Scripps-Howard Broadcasting, supra, as the authority that
governs the resolution of this dispute. There, the Court
addressed the question whether the First Amendment
gave a television station an affirmative defense to
Hugo Zacchini’s claim that the station unlawfully
filmed and broadcast his 15-second “human cannonball”
act. 433 U.S. at 563. Performing at a state fair, Zacchini
asked a reporter not to film the routine, but the reporter
recorded it anyway and played the whole act on the
evening news. Id. at 563-64. The Court emphasized that
the nature of the reporter’s action was key. If the televi-
sion company had “merely reported” that Zacchini
“was performing at the fair and described or commented
on his act,” the case would have been “very different.” Id.
at 569. But Zacchini was not arguing the media could
not report on his routine. He was complaining that the
station “filmed his entire act and displayed that film
on television.” Id. The distinction between coverage or
reporting on one hand, and broadcast of an “entire act” on
the other, was central to Zacchini. See id. at 574 (distin-
guishing precedent involving “the reporting of events”
from “an attempt to broadcast or publish an entire act”).
Regardless of where that line is to be drawn in close
cases, the Court was “quite sure that the First and Four-
teenth Amendments do not immunize the media when
they broadcast a performer’s entire act without his con-
sent.” Id. at 575.
22 No. 10-2627
Zacchini also recognized that the ability to control
broadcast of one’s performance does not just happen to
be consistent with the Constitution; it also provides an
important economic benefit. See id. at 576-78. Interpreting
the First Amendment to provide the media with a right
to transmit an entire performance or to prohibit
performers from charging fees would take us back centu-
ries, to a time when artists or performers were unable to
capture the economic value of a performance. Over the
long run, this would harm, not help, the interests of free
speech. The First Amendment requires no such folly.
In short, Zacchini establishes two propositions that
guide our resolution of this case. First, it distinguishes
between the media’s First Amendment right to “report
on” and “cover” an event and its lack of a right to broad-
cast an “entire act.” Second, Zacchini makes clear that
the producer of entertainment is entitled to charge a fee
in exchange for consent to broadcast; the First Amend-
ment does not give the media the right to appropriate,
without consent or remuneration, the products of others.
Finally, Forbes indicates that these principles apply to
state actors as well as private actors.
C
The foregoing allows us to clarify what is at stake in
this lawsuit. The district court thought that the type
of speech mattered for First Amendment purposes; it
reasoned that “the same First Amendment scrutiny to
limitations on access to a political event do not neces-
sarily apply to limitations on a sports tournament.” To
No. 10-2627 23
the extent that this statement credits WIAA’s assertion
that sports reporting lies on the periphery of protected
speech or implies that reporting on sports events
deserves less protection than reporting on political
events, we reject that view. The fact that, to some, sports
might be “mere” entertainment does not change the
analysis. (Indeed, one of the most famous free speech
decisions in our history involved a novel, surely one
form of entertainment. See United States v. One Book
Entitled Ulysses by James Joyce, 72 F.2d 705 (2d Cir. 1934)
(holding that the novel was not obscene for purposes of
the Tariff Act of 1930).) There is no basis for a rule that
makes the press’s right to coverage depend on the pur-
ported value of the object of their coverage.
Second, it is significant that no one is challenging
WIAA’s credentialing policies. If there were some in-
dication that WIAA was discriminating at that level on
the basis of viewpoint, we would have a different case.
We have no quarrel with Gannett’s argument that “cover-
age is not without opportunity for viewpoint discrim-
ination.” But as we have explained, that point does not
lead to the conclusion that WIAA has no protectible
rights in the dissemination of the entire sporting event.
Third, Gannett’s complaint that the exclusive licensing
agreements are a form of “prior restraint” on media
speech is also misplaced. Nothing here amounts to “cen-
sorship” in the sense of an “effort by administrative
methods to prevent the dissemination of ideas or
opinions thought dangerous or offensive.” Blue Canary
Corp. v. City of Milwaukee, 251 F.3d 1121, 1123 (7th Cir.
24 No. 10-2627
2001). In a broadcast situation—as Zacchini and Forbes
demonstrate—our focus is on the performer’s (i.e., the
speaker’s) efforts to control its own message. No one is
telling the press what to say about the event. To the
contrary, under the Media Policies a newspaper can
record an entire event and edit it down to the two
minutes it wants to broadcast, consistent with its own
editorial discretion. The exclusive streaming provisions
of the Media Policies do not censor or regulate the
content of such coverage at all.
Finally, this is not the same as the cases in which
an official has “unbridled discretion” to grant or deny a
permit to a speaker. E.g., City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750 (1988). Gannett argues that
the Media Policies give too much discretion to American-
HiFi over who is allowed to broadcast the residual
games it does not stream. The analogy is inapt. In the
“unbridled discretion” context, the private speaker has
some First Amendment right to engage in the speech
activity. For example, people who wish to parade have
a right to express themselves, and so there must be
limits on the discretion of authorities who grant parade
permits. See Saia v. New York, 334 U.S. 558, 559-60 (1948).
Even so, the state is entitled to impose time, place, or
manner restrictions as long as they are viewpoint neutral,
narrowly tailored, and leave open ample alternative
channels of communication. MacDonald v. City of Chicago,
243 F.3d 1021, 1032 (7th Cir. 2001). But here, as Zacchini
makes clear, the newspapers do not have the under-
lying right to broadcast an entire event, and Forbes
adds that our focus is on the product and message being
No. 10-2627 25
displayed by WIAA. For that reason, cases addressing
licensing or permitting regimes for speakers and perform-
ers or public park-goers are inapplicable. E.g., Kunz v.
New York, 340 U.S. 290 (1951). On this record, cases
that worry about fees that discriminate according to
viewpoint are inapposite as well. E.g., Forsyth County v.
The Nationalist Movement, 505 U.S. 123 (1992).
D
The only remaining question we must address is
whether there is any reason grounded in the First Amend-
ment why WIAA might not be entitled to enter into
these agreements for the purpose of raising revenue.
Gannett argues that the government, even in a proprietary
capacity, cannot raise revenue. This is a radical and
unsupported position, and the law is 180 degrees to the
contrary: governments in fact have a legitimate and
substantial interest in raising revenue in this way. See,
e.g., Navy Pier, 150 F.3d at 702-03; Gannett Satellite Info.
Network, Inc. v. Metro. Transp. Auth., 745 F.2d 767, 775
(2d Cir. 1984).
To succeed, Gannett would have to convince us to
disregard Lehman v. City of Shaker Heights, supra, which
we have neither the power nor the inclination to do. In
Lehman, the Supreme Court considered an exclusive
contract between a city and private advertiser that
limited access to advertisement space on public buses.
418 U.S. at 299-300. Like American-HiFi, the private
company served as the city’s exclusive rights holder and
26 No. 10-2627
agent. The contract prohibited the private advertiser
from selling ad space if the buyer had a political mes-
sage, id., but private companies’ ads—even those for
cigarettes or liquor—were permissible. A candidate for
local office challenged the contract, but the Supreme
Court sustained it, even though it excluded political
advertising. Justice Blackmun, who announced the judg-
ment for the plurality, described advertising as “incidental
to the provision of public transportation,” and part of
the city’s “commercial venture.” Id. at 303. In such an
instance, limiting access to advertising space to raise
revenue was a “reasonable legislative objective[] ad-
vanced by the city in a proprietary capacity.” Id. at 304.
We came to a comparable result in Ayres v. City of Chi-
cago, 125 F.3d 1010 (7th Cir. 1997). There, pursuant to
a local ordinance, Chicago had authorized one vendor
to sell t-shirts at the “Taste of Chicago,” a large publicly
sponsored festival. In exchange for the “exclusive right
to sell T-shirts and other merchandise in the park at
festival time,” the City received a fee and royalties from
gross sales. Id. at 1013. In considering a First Amend-
ment challenge to the ordinance by a vendor
who wanted part of the action, we noted that “unques-
tionable benefits” came from the arrangement. Those
benefits included “limiting competition with the city’s
own money-making activities, such as the granting of
exclusive licenses to vend in exchange for a percentage
of the vendor’s revenues or some other form of fee.” Id.
at 1015.
Other courts considering exclusive broadcast agree-
ments between a government entity and a private party
No. 10-2627 27
have universally, as far as we can tell, reached the
same conclusion. Gannett, at least, has shown us no
case where an exclusive broadcast agreement has been
invalidated on First Amendment grounds. For instance,
in Hubbard Broadcasting, Inc. v. Metropolitan Sports
Facilities Commission, the Eighth Circuit considered a
city’s exclusive contract with a private company to put
up advertisements in a publicly financed sports complex.
797 F.2d 553 (8th Cir. 1986). After discussing Lehman and
noting that the stadium was a proprietary venture, Hubbard
credited the city’s rationale of allowing “a small number
of commercial advertisers access to a limited amount
of advertising space on government property in order
to generate revenue.” Id. at 556. For First Amendment
purposes, this was a “reasonable objective” and therefore
constitutional. Id. Jacobsen v. City of Rapid City similarly
held that a small municipal airport did not violate the
First Amendment by giving its only gift shop the exclu-
sive right to sell newspapers. 128 F.3d 660 (8th Cir. 1997).
As the court put it, “[f]rom a proprietary perspective, it
is presumptively reasonable for the manager of a small
airport to conclude that granting one gift shop conces-
sionaire the exclusive right to sell consumer products
in the terminal will both maximize that type of leasing
revenues and minimize leasing costs by eliminating
the need to negotiate with many different types of ven-
dors.” Id. at 664. Likewise, the Eleventh Circuit rejected
a First Amendment and equal protection challenge to a
public university’s decision to grant a photographer
an exclusive contract to take pictures at graduation cere-
monies. Foto USA, Inc. v. Board of Regents of the Univ. Sys.
of Fla., 141 F.3d 1032 (11th Cir. 1998).
28 No. 10-2627
More broadly, it is well known that exclusive con-
tracts are common because they “reasonably serve to
maintain or enhance the value of an artistic or intellectual
product.” Home Box Office, Inc. v. FCC, 587 F.2d 1248,
1253 (D.C. Cir. 1978). Home Box Office was an antitrust
case that reflected the wide body of economic literature
demonstrating the substantial value of exclusive li-
censing agreements. See, e.g., Jan B. Heide et al., Exclusive
Dealing and Business Efficiency: Evidence from Industry
Practice, 41 J.L. & E CON. 387 (1998); Richard M. Steuer,
Exclusive Dealing After Jefferson Parish, 54 A NTITRUST
L.J. 1229 (1985).
It is no surprise, then, that several amicus briefs sup-
porting WIAA emphasize the need for exclusive
contracts in sports broadcasting to help school districts
raise revenue that is not likely to come from elsewhere.
The National Federation of State High School Associa-
tions contends that if they were “not allowed to enter
into and enforce . . . exclusive agreements, their ability to
promote the benefits of interscholastic activities would be
significantly diminished.” Statewide associations analo-
gous to WIAA push the same point: revenue raised from
exclusive contracts is vital to making sponsorship of
statewide events possible, and this is why the vast
majority of these associations “grant transmission rights
to third parties on an exclusive basis.” Even if exclusive
agreements did not actually raise significant revenue
beyond what could be raised with non-exclusive agree-
ments or a system without agreements at all, the fact
remains that federal courts are not price-boards, and
legality does not depend on a successful business projec-
No. 10-2627 29
tion. The only point is that state entities, like private
entities, may have valid reasons for choosing this
method of distribution.
E
We could stop here, but we think it important to say a
word about the broader implications of Gannett’s argu-
ment. The principles at stake in this case are not limited
to the streaming or broadcast of a few high school tourna-
ment games in an upper-Midwest state. For example,
the distinction between coverage and transmission of
an “entire event” is also important in cases involving the
right of public access. In these cases, the public and
media often have the right—either by statute or even
the Constitution (see Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980))—to attend a public proceeding like
an execution or trial. Although there may be an affirma-
tive right to be present, the Supreme Court has not yet
recognized any corollary right guaranteed by the First
Amendment entitling the media to record, let alone
broadcast live, what happens at that proceeding. See, e.g.,
Rice v. Kemper, 374 F.3d 675, 678 (8th Cir. 2004)
(“[N]either the public nor the media has a First Amend-
ment right to videotape, photograph, or make audio
recordings of government proceedings that are by law
open to the public.”); United States v. Kerley, 753 F.2d 617,
620-21 (7th Cir. 1985) (holding that the public has no
First Amendment right to videotape a public trial despite
the fact that Richmond Newspapers guarantees right of
access).
30 No. 10-2627
State actors use exclusive contracts regularly without
any thought that they are violating the First Amend-
ment. For instance, the Wisconsin Alumni Research
Foundation (WARF) patents innovations made by the
scientific community at the University of Wisconsin at
Madison. The University relies on a private party,
WARF, to solicit and obtain third-party licensing fees. The
revenue from these agreements is substantial: WARF
currently pays an average of $45 million annually to the
University and has returned $1.07 billion to the school
since 1928. See generally Wisconsin Alumni Research
Foundation, www.warf.org (last visited Aug. 19, 2011).
Gannett’s claim here would cast a shadow over the com-
mercial licenses that WARF sells, by implying that the
First Amendment requires it to dedicate its inventions
to the public. No case has ever come close to holding this.
The logical implications of Gannett’s argument are
breathtaking. Suppose a high-school orchestra were to
perform one of Bach’s Brandenburg Concertos or the
drama club put together a rendition of Othello (both of
which are in the public domain). Gannett’s argument
would require the conclusion that the students have
no right to engage in the common practice of packaging
their performance and selling it to raise money for school
trips. For example, in Washington State, high school
students team with a local college to record CDs and sell
them online to raise money for high school music pro-
grams. See KPLU, School of Jazz, http://schoolofjazz.org/
(last visited Aug. 19, 2011). Similarly, the McCracken Mid-
dle School Band in Skokie, Illinois, sells its performance
No. 10-2627 31
recordings online. www.mccrackenband.com/resources/
recordings/ (last visited Aug. 19, 2011). These examples
could be multiplied almost endlessly. We can see no
reason to enjoin such a practice, or to require the schools
to destroy the economic value of their performances
by permitting unlimited free transmissions. Gannett’s
theory misses the distinctive aspect of what the students
are selling. They are not selling Bach’s concerto or Shake-
speare’s play; they are selling their own, unique per-
formance. WIAA does the same thing for high school
and middle school sports in Wisconsin. Gannett’s
theory would prevent the schools from retaining the
economic benefit of these events; instead, it would ef-
fectively transfer whatever benefit remained after the
destruction of exclusivity to the private media.
The idea that reporting and streaming are synony-
mous is also at odds with experience in the private
sector. There, everyone understands that there is a dif-
ference between a description of an event like the
Super Bowl, Women’s World Cup, or the College
World Series and the right both to videotape that enter-
tainment and then to publish it as one sees fit. In each
of these situations the producer of the entertainment—the
NFL, FIFA, or the NCAA—normally signs a lucrative
contract for exclusive, or semi-exclusive, broadcast rights
for the performance. Meanwhile, all media report on
the events. Cf. Home Box Office, 587 F.2d at 1253 (“Con-
tracts conferring the exclusive right to broadcast sporting
events and artistic or theatrical performances are common-
place.”). Gannett’s argument boils down to an assertion
32 No. 10-2627
that a government actor cannot, under any circumstances,
act like the NFL, FIFA or NCAA. But the First Amend-
ment does not require such a draconian rule. Lehman
and Ayres could not have reached the conclusions they
did if this were true. In fact, the tendency is the other
direction: to allow state actors performing commercial
or proprietary actions the same latitude afforded their
private counterparts. See Gilles v. Blanchard, 477 F.3d
466, 470 (7th Cir. 2007) (noting that courts “hesitate to
impose in the name of the Constitution extravagant
burdens” on public entities that similar private entities
do not bear).
IV
We conclude that WIAA’s exclusive broadcasting
agreements for internet streaming are consistent with
the First Amendment. This conclusion, as Zacchini
implies, also supports WIAA’s right to charge a fee to
a broadcaster wishing to stream a game that American-
HiFi has decided not to publish. It is not, as Gannett
contends, a “special tax on the press.” Minneapolis Star &
Trib. Co. v. Minnesota Comm’r of Rev., 460 U.S. 575, 576
(1983). WIAA is not prohibiting the media from
reporting on its events, nor is it imposing outrageous fees
for media members to have access to games. It does not
require the media to submit stories or blog posts to its
editors before they are published. Any of those actions
would make this a significantly different case. In the
case before us, while our reasons differ from those that
No. 10-2627 33
the district court gave, our ultimate conclusion is the
same. WIAA is entitled to summary judgment in its
favor, and we therefore A FFIRM the judgment of the
district court.
8-24-11