Below par: The PGA and freedom of the press
Inside the First Amendment

By Ken Paulson
First Amendment Center executive director

When it comes to reporting golf scores at PGA tournaments, it’s all about the green.

In a largely overlooked decision, the 11th U.S. Circuit Court of Appeals has ruled that the PGA Tour can prevent the news media from immediately reporting golfers’ scores.

The case stemmed from a lawsuit filed by Morris Communications, which sought the right to post golf scores on its Web site as they occurred and to be able to sell that information to third parties.

The PGA has a fairly elaborate system for collecting and reporting the scores. During tournaments, scores are tabulated for each player on each hole, passed along to other staffers, who then report those to a production facility. From there, the scores are sent to both the PGA Tour’s Web site and a media center, where members of the press are able to obtain scores.

When issuing credentials, the PGA Tour tells reporters they may not disseminate those scores until after they appear on the PGA Tour Web site or 30 minutes after they occur. This rule effectively prevents any competitor – including Morris Communications – from packaging and reselling scores in a timely manner.

At the heart of the case was whether the PGA could assert a property interest in scores. Could it legally set up a system that would bar news reporters from passing information along to the public for up to 30 minutes?

This is largely uncharted territory. Playwrights, authors and poets can use copyright law to prevent the unauthorized distribution of their work, but there is no creativity involved in reporting the raw numbers associated with a sporting event.

More than a dozen news outlets jumped into the fray to voice their concern that the PGA Tour’s practice could set a dangerous precedent. The results of a sporting event are news; can a private enterprise like the PGA monopolize factual information and prevent the press from reporting the news as it happens?

The federal appellate court concluded that that the PGA Tour could do precisely that. Dismissing the media’s First Amendment arguments in a quick paragraph, the court said that the case had nothing to do with copyright or freedom of the press. Instead, the court based its decision on antitrust law.

The court concluded that the PGA Tour was simply trying to preserve its investment in an elaborate scoring system and that its actions were protective and not predatory in nature. The restrictions on reporting will remain in place.

That outcome was a bit surprising, given the decision that another federal appeals court, the 2nd Circuit, reached in 1997. In that case, the National Basketball Association attempted to prevent Motorola from transmitting real-time basketball scores to its pager customers. The court concluded that the NBA had no exclusive rights to facts. The scores of the games in progress could be reported as part of the newsgathering process.

This new decision in the PGA Tour case has to be a little unsettling for the news media. It suggests that a sports league can establish restrictions on newsgathering by those wishing to attend an event, take away cell phones and personal digital assistants (as the PGA does) to prevent any unauthorized distribution of information and then turn to a federal court to enforce its reporting restrictions, unimpeded by First Amendment concerns.

In the short run, the decision in this case means that Morris Communications can’t make a nice profit piggybacking off the PGA Tour’s work. But in the long run, the decision suggests that courts may be so determined to protect profits that they’re willing to shortchange both the press and the public. Sports results are news, part of the free flow of information guaranteed under the free-press clause of the First Amendment.

What’s next? A restriction on every ticket sold and every news media credential distributed as Barry Bonds closes in on Hank Aaron’s home run record, all in the name of preserving profits for a pay-per-view special?

By ignoring the pleas of news organizations and rendering a decision on strictly antitrust grounds, the 11th Circuit has cleared its docket and clouded the future. This court needs to take a mulligan.