Welcome to Three Point Shot, a newsletter brought
to you by the Sports Law Group at Proskauer. Three Point
Shot brings you the latest in sports law-related news and
provides you with links to related materials. In this issue, we
feature contributions from our talented group of summer associates.
Thanks to Andrew K. Johnson, Benjamin G. Childress, and William S.
Wyman for their hard work on these articles.
Your feedback, thoughts and comments on the content of any issue
are encouraged and welcome. We hope you enjoy this and future
issues.
Edited by Robert E. Freeman
Two, Four, Six, Eight, SCOTUS Sets the Record Straight…in
Cheerleader Speech Case
Whether foreseeable or ironic, the impassioned words (or
F-bombs) of a dejected junior varsity cheerleader recently brought
a rather important First Amendment question before the Supreme
Court. That is, whether a public school can lawfully remove a
student from an extracurricular activity for profanity-laden social
media posts transmitted to fellow students off school grounds on a
Saturday. By a vote of 8 – 1, the Court upheld a Third Circuit
majority ruling that the defendant Mahanoy
Area High School’s decision to suspend a then 14-year-old,
plaintiff Brandi Levy (“Levy”), for an expletive-loaded
rant on social media expressing her irritation with the
school’s cheerleading team violated her right to free
expression. (Mahoney Area School Dist. v. B.L., No.
20-255, 594 U.S. ___ (June 23, 2021)).
In 2017, Levy came up short in try-outs for her Pennsylvania
high school’s varsity cheerleading team, landing on the JV
team. Clearly unhappy with the decision, that weekend she
turned to social media to gripe while in a local convenience store
located off school grounds. However, as the Court noted, she
didn’t voice her frustration “with good grace”;
instead, she logged into social media to make several posts,
including one rather un-cheery image of her and a friend flipping
the bird, with a caption that read: “F– school, F– softball,
F– cheer, F– everything.” Levy’s posts on an
ephemeral messaging app were designed to be viewed by her social
media “friend” group and disappear after a short
time. However, Levy’s cathartic posts didn’t quite
disappear from memory, as one recipient took a screenshot of
Levy’s rants and surreptitiously shared it with coaches and
school administration. The result was that Levy was suspended
from the cheerleading squad for a year.
Not to be defeated, Levy and her parents filed suit against the
school in Pennsylvania district court. With the First Amendment
issues up in the air, Levy stuck the dismount. The District
Court found that Levy’s statements
were constitutionally protected by the First Amendment and granted Levy’s request for an
injunction ordering the school to reinstate Levy to the
cheerleading squad because her posts did not
cause substantial disruption at the school,
citing the landmark Tinker precedent that held
that students do not “shed their constitutional rights to
freedom of speech or expression,” even “at the school
house gate,” and that a public high school could not
constitutionally prohibit a peaceful student political
demonstration consisting of “pure speech” on school
property during the school day. Yet, in Tinker,
the Supreme Court had stated that schools have a special interest
in regulating speech that “materially disrupts classwork or
involves substantial disorder or invasion of the rights of
others.”
On appeal, a Third Circuit panel affirmed the district court’s
decision but found Tinker not
applicable to this case because Levy’s speech took place off
campus and thus the school could not discipline her for engaging in
a form of free speech. The school district then filed a petition
for certiorari, asking the Supreme Court to decide whether
the Tinker standard “applies to
student speech that occurs off campus.”
Refusing to draw a bright line, the majority stated that it did
not believe the special characteristics that give schools
additional license to regulate student speech always disappear when
a school regulates speech that takes place off campus, as the
school’s regulatory interests “remain significant in some
off-campus circumstances.” While the Court declined to outline
a precise list of school-related off-campus activities that could
be properly regulated by a school to prevent substantial disruption
or protection of the school community, Justice Breyer did note
that, generally speaking, the leeway the First Amendment grants to
schools in light of their special characteristics is
“diminished” when it comes to off-campus protected
speech.
Ultimately, the Court ruled that Levy’s statements, albeit
vulgar, were protected speech. The Court found that because
the posts were made outside of school hours and off school grounds,
sent to a targeted audience, and did not specifically mention the
school’s name or target a member of the school community, and
since the school’s interest in teaching good manners and its
evidence of disruption or loss of team morale was unconvincing, the
posts at issue did not create a substantial interference that would
overcome Levy’s right to free expression
under Tinker.
As this case showed, beyond the (potential) disturbance a JV
cheerleader may have caused with a less-than-spirited post about
her school lies the constitutional right to free speech. In
closing, Breyer puts aside the crude speech and becomes a
cheerleader for team SCOTUS on the importance of First Amendment
rights: “[W]e cannot lose sight of the fact that, on what
otherwise might seem a trifling and annoying instance of individual
distasteful abuse of a privilege, these fundamental societal values
are truly implicated.”
Premier League Scores a Hat Trick in Ireland’s High
Court
One of the largest soccer leagues in the world continues to run
up the score against illegal streaming sites. On June 22, 2021, The
Football Association Premier League Limited (the “Premier
League”), obtained an extension of a blocking order from
the High Court of Ireland that allows the Premier League to compel
Irish internet service providers (“ISPs”) to undertake
certain enhanced measures to block the IP addresses of servers
transmitting illegal streams of Premier League football matches
during the 2021/2022 Premier League season. (The Football Association Premier League Ltd v.
Eircom Ltd., [2021] IEHC 425 (June 22, 2021)). This ruling
comes after the Premier League successfully obtained the first live blocking injunction in
Ireland in 2019. Subsequently, the Premier
League was able to obtain an extension of the blocking order
for the remainder of the 2019/2020 season and the 2020/2021 season.
Authority for these blocking orders comes from, among other
sources, Article 8(3) of Directive 2001/29/EC (Copyright
Directive), which states, in part: “Member states shall ensure
that rightholders are in a position to apply for an injunction
against intermediaries whose services are used by a third
party to infringe a copyright or related right.”
The order compels each defendant – Eircom Limited, Sky Ireland
Limited and Sky Subscribers Services Limited, Virgin Media Ireland
Limited, and Vodafone Ireland Limited (collectively, the
“Defendants” or “Irish ISPs”) – to block the IP
addresses of pirate servers streaming Premier League matches as
reported to the Irish ISPs by the Premier League’s technology
partners on or around match time. Notably, no defendant opposed the
order, highlighting the culture of teamwork in fighting piracy the
Premier League has developed with European ISPs.
This activity in the Irish High Court is part of an ongoing
campaign by the Premier League against illegal streams of their
matches. As we outlined in the April 2017 edition of
Three Point Shot, the effort kicked off in earnest in
2017, when the High Court of Justice in England, Chancery
Division, granted an injunction requiring
various English ISPs to block illegal streams at the Premier
League’s request. Groundbreaking for its time, unlike
previous injunctions, it allowed for the blocking of IP addresses
of suspected pirate servers at the ISP level and in real-time.
Following their success in England, the Premier League moved on
to the next round and sought to mirror this strategy in Ireland.
The initial 2019 ruling cites heavily to the blocking order first
used in England and its success. In the Irish court ruling, Justice
Haughton stressed the effectiveness of these dynamic blocking
orders, noting that academic literature shows that such orders
reduce access to illegal streaming sites by 90%. Similar to the
English blocking orders, the Irish blocking order also contains
safeguards to address the issue of “over-blocking,” or
interference with legitimate streams. For example, the blocking
measures are halted after the matches have ended and the Irish ISPs
and others are permitted to make an application to the court for
relief if they believe legal material is being blocked; the
blocking order also contains an “emergency brake”
provision that the Irish ISPs can use, in certain circumstances, to
suspend certain blocking measures if it is reasonably
necessary.
While the Premier’s League’s precise game plan for
blocking pirate servers is undisclosed, the basics are
straightforward. The Premier League employs anti-piracy partners
who identify servers associated with unlicensed live streams at or
during match time. These partners report the IP addresses to the
Irish ISPs who are then able to block the servers in real-time,
while matches are underway. This tactic has proven successful, but
pirate streaming services invariably find ways to circumvent these
methods with the use of VPNs and other tactics. Anti-piracy
measures are often a cat-and-mouse game and are not foolproof, yet
such blocking orders are designed not only to shut down illegal
streaming at the source but also to seriously discourage users from
turning to illegal streaming by making it as inconvenient and
unreliable as possible (as compared with the viewing experience on
lawful channels). This reality has led the Premier League to refine
their strategy further and is why the most recent blocking
injunction also allows them to pierce the pirate servers’
defense by using undisclosed, increasingly sophisticated
anti-piracy techniques.
Any winning team will tell you that to continue to be
successful, you must adapt to your opponent. So far, the Premier
League has done this by making such blocking orders more dynamic
year-to-year to keep up with technological changes. Based on their
success in England and Ireland, it seems that, wherever they take
the pitch, they will have success tackling unlicensed
streaming.
No Wiretap Liability for Barstool Sports’ Recorded
Interview under an Assumed Identity
“The call on the trial floor was that there was no
interception. After further review, the ruling of the court
stands.” This encapsulates the recent decision of the Supreme
Judicial Court of Massachusetts, which also marked the culmination
of a longtime dispute between Barstool Sports, Inc.
(“Barstool”) and Joseph Curtatone, the mayor of
Somerville, Massachusetts. (Curtatone v. Barstool Sports, Inc.,
No. SJC-13027 (Mass. June 14, 2021)). The case centered around
Mayor Curtatone’s allegation that Kirk Minihane
(“Minihane”), a Barstool employee, and Barstool
itself, violated the Massachusetts wiretap act (Mass. General Laws
c.272 § 99) by illegally intercepting Curtatone’s
communications when Minihane conducted a recorded interview with
the Mayor under an assumed name. The court handed down its
decision in mid-June, but the disagreement started years
before.
Barstool Sports is a sports and pop
culture media company originally founded in 2003 as a free weekly
newspaper, but which soon grew into a well-known brand with a
presence on the web, podcasts and in streaming video. As the
Massachusetts Supreme Judicial Court noted, it has a
“reputation for publishing crass content.” In 2019 a
Boston newspaper published an article about Barstool and days later
Mayor Curtatone chimed in with critical statements about the media
company. Barstool responded with unkind words about Mayor
Curtatone. Thus, the rivalry between Curtatone and Barstool was
born.
A few days after the parties’ online spat, in early June
2019, Minihane reached out to Mayor Curtatone with a request for an
interview. This long shot attempt by Minihane was rejected
immediately by Curtatone. On June 5, 2019, Minihane again reached
out to the City of Somerville’s Public Information Officer, but
this time falsely identifying himself as a reporter for a major
Boston newspaper requesting to interview the Mayor. This attempt
proved successful, and Minihane, posing as a major newspaper
reporter, conducted an interview with Mayor Curtatone on June 6,
2019. Before conducting the interview, but still posing as a
newspaper reporter, Minihane received permission from Mayor
Curtatone to record the conversation (and later posted it on
Barstool’s website). However, Mayor Curtatone remained unaware
that the interviewer was actually Minihane. Shortly after the
interview hit Barstool’s website, Mayor Curtatone brought suit
against Minihane and Barstool, alleging that they had violated the
Massachusetts wiretap act.
In Massachusetts, it is unlawful to willfully
“intercept” any wire or oral communication, absent an
exception; “interception,” as defined by the wiretap act,
“means to secretly hear, secretly record, or aid another to
secretly hear or secretly record the contents of any wire or oral
communication through the use of any intercepting device by any
person other than a person given prior authority by all parties to
such communication.” Mass. General Laws c.272 §
99 B 4. The state wiretap act provides a cause of action to any
aggrieved person whose oral or wire communications were
“intercepted, disclosed or used….” Under Massachusetts
precedent, to be successful in his claim against Minihane and
Barstool, the court stated that Curtatone had to prove: (1) that
the interception was “secretly” made; and (2) without
prior authority by all parties. As noted by the court, it first
considers whether the alleged “interception” was actually
made in secret; if it determines that the conversation was not
secret, then such recording does not constitute an
“interception” within the meaning of the statute and it
will not look to the second part of the test.
Mayor Curtatone made two arguments in support of his position.
He first contended that the wiretap act requires the parties to a
recorded conversation to give what he referred to as “actual
consent,” which he argued was impossible to give without
knowing the true identity of the interviewer. Second, Mayor
Curtatone argued that Minihane secretly heard and recorded the
conversation because, from the Mayor’s point of view, Minihane
was hearing and recording a conversation between Curtatone and a
newspaper reporter. In other words, Curtatone argued that because
he thought he was speaking to a specific newspaper reporter, the
conversation was secret to anyone other than Curtatone and the
reporter Curtatone thought was conducting the interview.
On the other side of the ball, Minihane and Barstool argued that
the conversation was not recorded in secret. According to Barstool
and Minihane, it would be impossible for somebody who is in fact a
party to the conversation to be listening to it in
“secret,” regardless of whether that person is lying
about their identity. Further, Barstool argued that Curtatone’s
consent to be recorded foreclosed any argument that the recording
was made in secret.
On January 15, 2020, a Massachusetts Superior Court granted Barstool and
Minihane’s motion to dismiss, finding that Mayor Curtatone had
actual knowledge of the recording of the telephone call and thus,
the call was neither secret nor an “interception” under
the state wiretap act.
On appeal, the Massachusetts Supreme Judicial Court ultimately
agreed with the lower court that the conversation was not illegally
intercepted. In the court’s reasoning, Curtatone’s
agreement to be recorded doomed the wiretap act claim, even given
the misleading nature of the interview. As the high court
explained: “The identity of the party recording the
communication or, indeed, the truthfulness with which that identity
was asserted is irrelevant; rather, it is the act of hearing or
recording itself that must be concealed to fall within the
prohibition against ‘interception’ within the
act.” Because of this, the court never considered the issue of
whether Curtatone authorized Minihane to listen to the
conversation.
Curtatone, unfortunately for him, found himself playing a game
that he had not prepared for – the dispute itself, particularly the
dismissal of claims, merely produced more content for Barstool to
post on its media properties. Mayor Curtatone, however, would
likely prefer another event like this not to happen to him; perhaps
he could suggest that all of his future interviews be conducted
over FaceTime.
Three Point Shot – Summer Edition 2021
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