Editor & Publisher reports the Associated Press and Gannett, owner of the Montgomery Advertiser and other papers in the SEC footprint including the Nashville paper and the Louisville Courier-Journal, have ordered their reporters not to sign the new SEC credential policy.
One of the arguments against the SEC’s credential policy is prior restraint. According to E&P this argument is being made by at least one newspaper editor, “The credential restrictions would be untenable,” said Mark Silverman, editor of the Tennessean, which covers the SEC’s University of Tennessee and Vanderbilt University. “They fail to recognize that we are not just a newspaper. We use a variety of mediums and I believe we are going to be able to make a prior restraint argument.”
Prior restraint is a government action preventing the publication of material. The wikipedia article is actually a good summary of the issue. Ordinarily, I hesitate to link to wikipedia; but, the article begins with a nod to William Blackstone’s contribution to the subject of press liberty, and for anyone who has studied US legal history, Blackstone’s notions of law heavily influenced American legal tradition. In fact, Blackstone’s commentaries were widely published in the U.S. prior to 1776. (Some scholars, Philip D. Jordan’s Frontier Law and Order, 1970, estimate as many as 2,500 copies were in circulation before the Revolution.)
Apparently, news organizations believe since the SEC is composed of public institutions, the credential policy must abide by the law. It would not be the first time such a holding forced athletic change; high school athletic associations were integrated under the same theory. In fact, the St. Augustine lawsuit against the Louisiana High School Athletic Association focused on the influence of this membership organization over public institutionsâ€”see finances. The appeals court held, “As the district court pointed out, interscholastic athletics is a program in which the state is actively and intensively involved, and ‘for the state to devote so much time, energy, and other resources to interscholastic athletics and then to refer coordination of those activities to a separate body cannot obscure the real and pervasive involvement of the state in the total program.'”
It would be hard to argue that the public institutions who are members of the SEC are exempt from abiding by established constitutional doctrine because the SEC set the policy, and not the member schools. Of course, it might not be that simple as the NCAA has avoided similar responsibility via cases like Hawkins and Parrish. Hawkins exempted the NCAA from equal protection requirements because the infraction enforcement actions “did not constitute state action as required to state claim for due process and equal protection violations…”
However, this isn’t an equal protection case, it is a free press case. It would be outrageous for a court to allow public institutions to restrict what the press can do with its own work product. On its face, a prior restraint argument is compelling.
But it might not get to court. The SEC continues to discuss its new policy with the AP and newspapers. According to E&P, conference calls took place Monday and are expected to continue on Tuesday. However, something must change or those who rely on the AP or Gannett for SEC coverage might be disappointed. If so, you can blame the SEC’s new policy and not the newspapers. The newspapers are defending important freedoms.