Small media group challenges getting booted from covering rival’s sports events

Legal case tests if a school can refuse access to media during COVID

By: - January 6, 2021 5:24 am

Yellowstone County News publisher Jonathan McNiven. (Photo by Darrell Ehrlick)

BILLINGS—Sports rivalries run deep in any high school. Now, a court battle in central Montana may take it to a different level.

Yellowstone County News and its sister radio station, KFHW, have been stymied from covering school sporting events at Roundup High School, a rival of several of the high schools in the newspaper and radio station’s coverage area.

The media owner said the decision by Roundup left him with no other option than to sue the school district for access, including asking a Musselshell County judge for a preliminary injunction. That case will be heard on Wednesday. 

The logos of Yellowstone County News, YCN Sports and KFHW Radio, 101.1 FM

 

Officials for Roundup Public Schools told Yellowstone County News Publisher Jonathan McNiven that he and any member of his sports staff must have a ticket to enter any sporting event in Roundup, a town about 60 miles north of Huntley. According to the lawsuit, the school district implemented a ticket system for indoor sporting events: Two tickets went to every visiting player, five tickets to every home player with staff, coaches and referees being exempted.

However, the lawsuit contends that Roundup Schools allowed competing media access to cover games and sporting events while shutting out the Yellowstone County News and radio reporters that broadcast, report and take photos of the events.

Further, McNiven said that Roundup never told him or his team about needing tickets to the sporting events. 

“We learned about the whole ticket argument from the reporter at The Billings Gazette,” McNiven said. 

And the Yellowstone County News alleges that competing media were allowed into the same event that it was not allowed into without needing a ticket, an issue that Roundup Schools doesn’t dispute.

The case isn’t about the bad blood between rival school districts. At the heart of the case is whether a school district can pick and choose which media it allows, especially during the time of a pandemic where public health restrictions are in place. 

Mike Meloy, a lawyer expert on public access and Montana’s media laws, said it’s surprising the case has escalated to this point because journalists have been on the list of jobs that have been exempt from the restrictions so long as they are following public health guidelines, for example wearing a mask.

Lawyers for the district contend that just because journalists have been made exempt from most public health restrictions during the pandemic, it doesn’t mean that media can attend any event they want. Furthermore, journalist isn’t defined by law, which means anyone with a social media account or a notebook could claim the privilege. 

“The rights to free speech and a free press enshrined in the Constitution of the State of Montana do not elevate an individual employed in traditional news media above the rest of the citizens of the state,” said Kyle Moen in a written statement to the Daily Montanan. “The lawsuit asks the District Court to force the School District to let YCN staff attend high school sporting events contrary to the School District’s COVID-19 restrictions, regardless of whether they have a ticket.” 

Lawyers for the district said they look forward to a day when the restrictions are lifted and the mitigation efforts will revert to normal.

District officials also declined to say whether other media from the area or visiting schools had been barred or turned away since the incident.

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McNiven said the first sign of conflict began when he went to cover a game on Sept. 5 – a volleyball match. At first he was told he couldn’t come due to health concerns. The school administration suggested that he use the photos, coverage or live radio feeds from competing media. McNiven said he knew it wasn’t that simple and his mission as a media company is to provide coverage his readers and audience expect. For example, using other media content without permission could be a violation of copyright. 

When he arrived, the high school principal allowed the reporters inside, but then required them to cover the events from high in the bleachers, which McNiven said he was willing to do. One person even came to ask if the Yellowstone County News and radio station employees had paid admission, but no one asked about a ticket.

A few days later, McNiven received a letter from Roundup Public Schools Superintendent Chad Sealey that referenced a spectator cap: Five for the home team, two for the visiting team due to COVID-19. Sealey also suggested, “Our home volleyball games are also broadcast on the NFHS network and Panther Country Radio…I would suggest contacting (them) to see if you can get a feed of his broadcast.”

Sealey and the Roundup Public Schools said they believe the Montana High School Association gives them the power and responsibility to limit access and to set up a system to limit the spectators.

Mark Beckman, executive director of the Montana High School Association, said his organization does not set attendance and media policy for the individual sporting games between two schools. That’s left up to the home school district. However, there are rules and policies during tournament time. In this case, the MHSA doesn’t have any say over who can get into events.

McNiven suspects there’s even more at play: When he covered that September girls volleyball match, Huntley upset Roundup in five games. 

He suspects a few painful losses and a convenient school district policy has allowed him to be shut out.

“Can you imagine if schools can just kick out journalists they don’t like?” McNiven told the Daily Montanan. 

Robert L. Stephens, Jr., the attorney for McNiven, said this dispute between the two small entities has huge implications, including whether Roundup violated the First Amendment rights of the paper and employees.

The Yellowstone County News has two local teams in its coverage area that play against Roundup, Huntley Project High School and Shepherd High School. 

“(The Yellowstone County News and KHFW) serves a high school fan base who can no longer attend away games or who, because of their condition, choose to avoid public gatherings,” Stephens said. “The Roundup Record has an authorized representative at the games taking photographs. There seems to be no rational basis why the school district cannot make equal accommodations.”

The case also claims that Roundup Public Schools violated the equal protection rights of Yellowstone County News employees because it granted access to Roundup-area media, but not McNiven’s team.

Lawyers for the Roundup district said in their court documents that no violation has occurred because it implemented a ticket system and applied it uniformly. In other words, if McNiven and his team had a ticket, they would have been admitted. 

In their response, Roundup attorneys argue that McNiven and his team want a special privilege that doesn’t exist for others, including Roundup spectators who cannot get a ticket. Stephens said his clients asked for a way to obtain a ticket, whether through pay or application, but Roundup refused.

“They took this hardline approach that said my client needed a ticket, and we asked if there was a way to get it, and then they told us there was no way,” Stephens said. 

He questioned whether the school district’s policy could prevent journalists from event coverage when the state has clearly named media as an exempted class. 

Moen and co-counsel Jeff Weldon argue that Roundup has done nothing to violate the First Amendment Rights of the Yellowstone County News and the radio station. They contend the media company is still free to publish, report and broadcast, but that it doesn’t have the right to demand entry into the sporting events, especially in times of COVID-19.

“(The Yellowstone County News) is a non-local radio station demanding special access to sporting events hosted by the school district. Plaintiff seeks this access for commercial purposes in contravention of the School District’s duly adopted and rational sporting events policies designed to prevent or minimize the spread of a deadly pandemic while still affording the School District’s children some sense of normalcy,” the court filing argues.

They cite several U.S. Supreme Court decisions regarding the First Amendment and access to information.

“There is no First Amendment right of access to information… The right to speak and publish does not carry with it the unrestrained right to gather information,” said the school district’s lawyers, citing the case of Houchins vs. KQED, Inc.

Meloy said that the court must consider this a First Amendment issue.

“The fact that (Roundup) would let some media in and not others weakens their case,” Meloy said.

Furthermore, Meloy said the school district will likely have questions about why it chose to single out a particular media group when the county health boards and states have exempted media, recognizing that they become even more essential during a time of restrictions as a conduit for information. 

“COVID policies present a very unique environment where all kinds of potential problems can arise along the line of how much a government can restrict anyone’s freedoms of liberties,” Meloy said. 

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.

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