College athletics are, in some ways, the epitome of what sports are supposed to represent. In our collective minds, college sports are pure, a reminder that decades ago, we too were once young, agile, and full of potential.

Every season, alumni forced to move away from “dear ol’ State” descend upon land-grant campuses in a tribal, nearly reflexive migration. But for those not able to attend their alma mater’s match, sports journalism folds the map, bringing a reader into the college stadium, huddle, coach’s office, and press conference — in essence, bringing the reader back home.

Covering college sports, however, is turning into a First Amendment obstacle course. Most recently, the issue was raised in Lexington, Ky., and caught national media attention.

The Kernel Gets Banned

At the University of Kentucky, a reporter from The Kentucky Kernel, the school’s student newspaper, asked two basketball players for an interview directly. Aaron Smith, the paper’s managing editor, called Brian Long and Sam Malone, two recent additions to the Wildcats storied program, and wanted to know whether they were joining the team as “walk-ons,” or players not recruited by the team. Walk-ons often become instant fan favorites, an emblem that success can befall all of us, the underdogs, if we can only stick out the hard times.

i-ec17e70c930a04f1291b971f31e9c670-KENTUCKY-KERNEL-NEWS-FEATURES.jpgThe university took offense to Smith’s conduct and retaliated. DeWayne Peevy, associate athletics director for media relations at the university, rescinded the Kernel’s invitation to a media event where reporters would get “eight minutes of time alone” with members of this high-profile squad. Peevy was quoted as saying that the ban was a form of “punishment” intended to teach Smith “a lesson without costing him anything.”

Originally, school officials stated that Smith had violated an unwritten school policy that asked reporters to go through Peevy’s office for interviews and not contact student athletes directly. Later, the school cited a written policy to the same effect. In interviews, Peevy stated that the control of media requests was necessary in order to protect student athletes from being “bombarded with interview requests constantly.”

The Kernel flap caught national news attention for a brief period and then faded away. The Kernel was only banned from one pre-season media event. Moreover, the information journalists obtained at the event was embargoed — they agreed not to publish what they learned until the embargo was lifted. (This practice is not that uncommon.) The university also held a cathartic community forum on the issue, although Peevy did not attend, saying that other obligations forced him to cancel his commitment to appear.

These details prompted an online commenter by the name of “UK number 1” to write, “Who cares this is a non issue. Must be a slow news day at ESPN.” Other fans agreed. On Twitter, user @smyzo sarcastically stated “Uh, media can’t go calling UK players directly, its their #1rule. How is a 1 day ban being a bully.”

This issue seems to be just a blip on an otherwise positive relationship between the Kernel and school officials. However, it highlights a First Amendment problem that has detrimental affects on our ability to learn about our cherished college athletic programs.

Press Credentialing Policies Must Be Written

At its core, the First Amendment protects our ability to access information in the “marketplace of ideas.” This right does not limit itself to discussion about politics or high-minded philosophy, but applies with equal force to sporting events, players, and athletic controversy.

The public interest in athletics is just as strong, if not stronger, in the context of college sports. Universities offer students the opportunity to participate in athletics under the principle of Mens sana in corpore sano, Latin for “a sound mind in a sound body.” If college is the place where students’ minds are shaped for later life, then it’s also where students learn the things that are unique to sportsmanship: camaraderie, disappointment, accomplishment, loss, glory, and love, for instance. The public has a right to know how state universities are fulfilling their mission of rounding students’ education with these values.
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But despite the public’s unique interest in knowing the details of a college sports program, access to information about big-name university teams is tightly controlled. Interviews must be prearranged by school authorities. Access to practices and press conferences are only offered to a select few. These policies are justified because school officials have an interest in ensuring student athletes can receive an education despite our seemingly never-ending desire for information about high-profile players.

However, officials at state universities may not restrict a reporter’s access to information about college sports for any reason they see fit. (The same First Amendment concerns are not raised at private colleges.) The actions of media relations officials must not go against the First Amendment. Nor may these individuals rescind access at the drop of a dime.

When state officials — like a media relations director at a state university — offer some reporters access to press conferences or other generally open media events, they must do so pursuant to a written credentialing policy. At least one court has gone even further, requiring state officials to articulate “narrow and specific standards” to determine which reporters can get access to press events, and which cannot.

In the Kernel’s case, if we take Peevy at his word, Smith was originally banned pursuant to an unwritten policy. Later, university officials cited a written policy. Peevy’s statements show he originally believed that he had the king-like authority to punish the school newspaper by taking away access to a media event is a constitutional problem.

When school officials deny a reporter access to generally open media events pursuant to an unwritten credentialing policy, the risk that officials are unconstitutionally discriminating among journalists is untenably high. State actors may not deny a journalist access to events like a press conference because the reporter is particularly critical of the program or officials do not like what the journalist has printed. Such determinations are content-based discriminations, a form of censorship the First Amendment reviles.

A university may not need to invite every journalist to every media event, or do away with exclusive interviews to favorable reporters. But when a state official opens up a generally accessible forum, like a press conference or similar media event, content-based discrimination cannot be tolerated. Yet, when a state university bans a student newspaper citing an unwritten policy of conduct, there is no way to know whether content-based discrimination is taking place.

The First Amendment issues raised by the Kernel saga do not end at whether the University of Kentucky wrote down its credentialing policy. Rather, they only get worse the more you think about them.

The First Amendment Right of Equal Access to Information

State universities do not have to hold press conferences or open practices to reporters. In fact, if a school wanted to hold basketball games in a pitch-black arena, there is no constitutional requirement to stop them.

But once a university initiates media events available to the press generally, different rules apply. Namely, there is a First Amendment right to equal access to information wholly separate from a right to access information in the first instance. By this, I mean that although there may not be a right to force state officials to hold a press conference, once officials choose to do so, journalists have a right to be treated in a constitutional manner. According to several courts, state officials may not prohibit one reporter from obtaining access to an event because he or she is particularly critical of the event being covered. Such discrimination is “content based,” and thereby presumptively against the very foundation of our First Amendment.

Peevy, again, seems to have overlooked this aspect of the First Amendment. In July, he tweeted, “I guess we now know one media seat that will be available at Rupp [Arena] this year” after CBSSports.com reporter Gary Parrish questioned the university’s recruitment of basketball freshman Anthony Davis.

The message that such practices send is clear. If a reporter is critical of the people and team they are covering, access to players and games will be stripped. As a reporter forced out of generally open media events, you may as well begin polishing your resume. Content-based policies, especially in the context of sports journalism, coerce reporters to become cheerleaders for the team they cover — or find a new job.

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Jon Fleischaker

That does not mean that university officials must allow every reporter access to every press conference and media event. Indeed, it would be impossible to offer access to every reporter, blogger, and citizen journalist. Where such access is limited for content-neutral justifications — those not related to what the reporter has published or intends to publish — less constitutional problems are raised.

That may be what happened in the Kernel situation. Smith may have been banned from a generally open media event for breaking a school rule, not because of what he published. Although, Kernel attorney Jon Fleischaker would disagree, stating Smith was banned because the university “didn’t like what was published.”

Often, it is difficult to tell whether a state official is stripping access from a reporter for content-based reasons. This ambiguity requires the First Amendment to be hyper-vigilant and step in every time there is a real possibility that university officials are making content-based discriminations. As the Supreme Court has stated, multiple times, when there is the possibility of First Amendment violations the law errs on the side of more protection — more speech — not less.

When reporters are bullied into writing what school officials would like to see beneath a masthead through content-based access policies, we are all worse off. Not only does a state actor usurp the reporter’s First Amendment rights, but the public is left with a less critical, analytic, and diverse marketplace of ideas. We, like the ousted reporter, are kept in the dark.

Why First-Hand Access to Information Matters

Every time I make this argument — that reporters cannot be kept out of generally open media events for content-based reasons — I run into the same retort. “If a reporter is banned from an event, why don’t they just write a story based on what has been written by other reporters?”

To be plain, it is of no constitutional concern that a reporter banned from a media event may obtain information by other means. As court after court have stated, first-hand access to information gives those in attendance the ability to gather information “concerning demeanor, non-verbal responses, and the like” in ways that are wholly unique.

When a reporter is forced to glean information offered at a press conference from other news outlets so fortunate to attend, he or she must accept the editorial judgment of those other outlets. A news story — any story — filters, organizes, and omits information deemed unimportant or irrelevant. These editorial decisions attach to any later publication derived from the original and, like dandelion seeds blown astray in the wind, cannot be undone. In essence, discriminatory access to a press conference limits the universe of ideas and information that a reporter may derive from the event and raises a distinct constitutional problem.

This is the real constitutional offense promulgated by university media directors. When officials hold generally open media events and limit access to them for content-based reasons or pursuant to unwritten credentialing policies, they’re manipulating the marketplace of ideas in ways that cannot be undone. As a nation that (rightly) cherishes college sports, this manipulation cannot be allowed to stand and should be challenged where it exists.

Rob Arcamona is a legal fellow at the Student Press Law Center (SPLC) and a graduate of The George Washington University Law School. He is the author of a law review article published in the American Bar Association’s Communications Lawyer journal, titled “Bloggers, Other Alternative Media, and Access to Press Conferences.” The SPLC advocated on behalf of Kernel reporters. The author had no direct role in the SPLC’s involvement with the Kernel and University of Kentucky officials.

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