How Do the New SEC Media Policies Affect Your Friendly Neighborhood Webloggers?

There has been a lot written (and deservedly so) about the new Southeastern Conference policies regarding the use of game video and the restrictions on the dissemination of information in real time, spearheaded by hooper’s excellent exegesis at Rocky Top Talk. As I remind you all whenever matters of a legal nature arise, I am a lawyer, but I try not to play one on the internet, and you get what you pay for where free legal advice is concerned. All warranties as to the merchantability or fitness for a particular purpose of the following, whether express or implied, are hereby disclaimed. This is more in the way of practical observations than critical analysis, anyway. That said, a few points bear making.

First of all, this is not dramatically different from the NCAA’s previously-enunciated policy on liveblogging sporting events. The rise of social media, from weblogs to YouTube to Twitter, has made it possible for literally anyone to cover any event to which the would-be correspondent can gain access, in person or otherwise. (Not everyone can do it well, or even responsibly, of course, but that is a part of the problem and a major reason why the Buzz Bissingers of the world lump us all in with one another without drawing reasonable distinctions.)

As hooper notes, there actually are two policies here, only one of which is really relevant for my purposes; I leave it to professional journalists like David Hale to address the impact of the policy governing credentialed media. What is of interest to me is the set of guidelines covering ticket holders without media credentials . . . in other words, the folks like Doug Gillett, Paul Westerdawg, Senator Blutarsky, MaconDawg, and me, et al.

The policy states up front that a ticket "is a personal license and may not be re-transferred or assigned." That should give you some idea just how all-encompassing these new rules are intended to be. If you wanted to get overly nitpicky, you could read that to mean you couldn’t give your tickets away if you couldn’t make it to a particular game. Obviously, the SEC isn’t planning on going after folks for selling their tickets on eBay, but the breadth of the language ought to get your attention; the league wants to make sure everything is covered.

Regarding an "event"---including games, but also including practices and press conferences---no one who comes in with a ticket or a non-media credential can use anything protected by copyright law without the SEC’s written permission. This largely fits under the heading of well, duh; like the protection of patient privacy provided by HIPAA or the first section of the 25th Amendment, this pretty much codifies what we knew already. That’s no big deal.

What is a big deal is this:

No Bearer may produce or disseminate (or aid in producing or disseminating) any material or information about the Event, including, but not limited to, any account, description, picture, audio, reproduction, or other information concerning the Event, other than in speech that cannot be restricted under the First Amendment, in any form.

Frankly, that provision is badly worded, because, technically, we're talking about the freedom of the press rather than the freedom of speech. Unfortunately, those terms---which are fairly legally precise, are subject to a common sense understanding, and, you know, appear in the actual Bill of Rights and all---largely have been conflated into the much more amorphous notion of "freedom of expression." This artless departure from the Constitution is the source of much pernicious silliness appearing in U.S. Supreme Court opinions attempting to define obscenity and searching for "expressive value" in nude dancing and flag-burning and suchlike . . . but I digress.

By buying a ticket, I am agreeing to a contractual arrangement whereby I will refrain from producing or disseminating accounts of the game, except to the extent that the First Amendment allows me to do so. Well, that's a pretty broad extent, don't you think?

You’re not getting fresh facts from my postgame write-ups; I looked up the numbers the same place you did. You’re getting my impressions (for whatever they might be worth) of the significance to be attached to facts of which you and I are equally aware. If I disseminate details about a football game while making the case that, e.g., Willie Martinez should not be Georgia’s defensive coordinator, am I violating the league’s policy or am I within the ambit of the exception?

I think there’s a pretty good case to be made for the proposition that I’m squarely inside the protection of the First Amendment when I tell you what I think about the job performance of a Georgia football coach based upon information that would qualify as a game account being disseminated . . . in fact, a pretty good case was made for that precise proposition.

At the end of the day, the First Amendment is the exception that swallows the rule. Even if it was a smart legal or public relations move for the SEC to come after webloggers for writing up their thoughts on what happened in Sanford Stadium the day before, the expense of litigating enough such cases to make it worth the conference’s while to crack down would make such an approach unsound, even if it was not cost-prohibitive. (I’m not sure anything, up to and including purchasing Brunei, qualifies as cost-prohibitive for the SEC any more.)

What, then, are the consequences of failing to adhere to the policy? Brace yourselves:

If the SEC deems that a Bearer is violating the restriction in the prior sentence, the SEC reserves the right to pursue all available remedies against the Bearer including but not limited to the revocation of the Ticket.

While "all available remedies" could include anything and everything from an injunction to a damage suit (which wouldn’t be altogether unlikely in the event of widespread use of copyrighted material), there’s a reason why one threat and one threat only is spelled out in the policy.

If they catch you liveblogging in the stadium, they’re kicking you off the premises, but that’s about it. It’s not coincidental that this same policy clamps down on "bring[ing] alcoholic beverages, bottles, cans or containers" into the stadium; there, too, the risk you’re running is being kicked out or forced to empty your flask out onto the sidewalk.

In each case, the real threat of punishment is relevant only during the event. If I’m snapping pictures of live game action with my cell phone camera and posting them while I’m in the stands, or if I’m sending out play-by-play Twitter updates from my seat, I could be in trouble, although I tend to think stadium security’s response to being told to be on the lookout for such activity would involve eye rolling and heavy sighing.

If I go to the game to watch the game and don’t write anything about it until afterwards---in other words, if I keep doing exactly what I’ve been doing all along---I’m not worried in the slightest about the SEC hunting me down for telling you what I thought about a game I attended the day before.

If you’re a full-time reporter trying to cover a head coach’s press conference, your gripes about the SEC policy concerning credentialed media are legitimate complaints about something that affects your ability to do your job. As a college football weblogger and a Georgia season ticket holder, though, I find the policy concerning folks like me to be much ado about not very much.

I’m not planning on violating any copyright laws, and, while I’m at the game, I’m going to be watching the game. You’ll hear from me afterwards, once I’ve had time to mull it over for a while (and, like, drive home and stuff). The SEC wants to be guaranteed of getting there the firstest and is content to let me go my own way and worry about being the bestest? That sounds to me like we have a complementary, rather than adversarial, relationship, gentlemen. I’m looking forward to working with y’all and I’m ready for some football.

Go ‘Dawgs!

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