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UK officials have prohibited the Kentucky Kernel from distributing newspapers at Commonwealth Stadium before football games, a move First Amendment lawyers call unconstitutional.
On Sept. 18, UK Athletics officials stopped eight Kernel advertising staff members who came to the stadium’s parking lot before the game against Akron to distribute issues of the free student publication, Kernel Student Advertising Manager Sarah Geegan said.
After originally stopping the advertising staffers—seven of whom were students—for operating an improperly marked golf cart, officials caught up with the group as it passed out newspapers in a recreational vehicle area and asked Geegan and the advertising team to stop distributing the publication. Officials said a contract with IMG College, a sports marketing firm, prohibits the Kernel and other publications from handing out papers on Commonwealth Stadium grounds, Geegan said.
Officials advised the Kernel to contact UK Athletics Marketing, Promotions and Licensing to gain permission. Geegan said the advertising staff called multiple times, but never got a response.
Geegan said the Kernel advertising staff has handed out nearly 2,000 newspapers before every home football game for 10 years without interference from UK. For UK’s Oct. 9 home game against Auburn, the staff passed out papers on streets and lots surrounding the stadium property, Geegan said.
Kernel Editor-in-Chief Matt Murray said he believes UK’s actions are unconstitutional.
“It’s a clear violation of our First Amendment rights,” Murray said. “No amount of money should be able to buy away anyone’s constitutional freedoms.”
The First Amendment prohibits any law that impedes free speech, restricts religion, obstructs the freedom of the press, interferes with the right to peaceably assemble or prohibits the petitioning for a governmental redress of grievances.
UK is a state-funded university and owns Commonwealth Stadium, making the venue a public place.
The Kernel plans to continue distributing on the public university’s campus, including Commonwealth Stadium, Murray said.
Mike Hiestand, a consulting attorney for the Student Press Law Center in Washington D.C., believes UK’s actions and its contract with IMG impedes the Kernel’s free press rights.
“The university cannot contract away students’ First Amendment rights,” Hiestand said.
According to the contract, UK’s deal with IMG is worth $80 million and grants the company exclusive advertising and media rights.
“UK is doing everything it can to protect its contract with us,” Big Blue Sports Marketing general manager Kim Bucci Shelton said.
Big Blue Sports is the subsidiary of IMG that deals with UK. Shelton declined further comment and directed any questions regarding the contract to UK.
Jon Fleischaker, a media lawyer who has represented the Chicago Tribune, the Kentucky Press Association and The Courier-Journal in Louisville, said UK put money ahead of its students’ rights when it prohibited the Kernel from distributing papers at games.
“For them, it’s a money-making enterprise,” he said. “They want to make every nickel they can.”
UK Executive Director of Public Relations and Marketing Jay Blanton said he believes UK’s practices are constitutional because distribution is not guaranteed in the Constitution.
“The First Amendment grants the right to publish, but there are limits to where publications can be distributed,” Blanton said.
Fleischaker said UK cannot restrict the distribution of publications because it is a public university.
“Case after case has said the First Amendment grants the right to distribute,” he said. “What they’re trying to do is like trying to sell the rights to the sidewalk.”
Blanton compared IMG’s grip on the distribution rights to another aspect of the stadium.
“Commonwealth charges for parking,” he said. “No one would say that’s prohibiting the right to assemble.”
Fleischaker disagrees with Blanton’s analogy.
“The right to free speech is not a right they have to sell,” he said.
Other newspapers at schools with IMG contracts have not had trouble having a presence at games, but do not actively dispense papers like the Kernel does. Rather than having representatives distribute newspapers at home games, the University of Tennessee, University of Michigan, University of Florida and Ohio State University all have newspaper boxes located near their venues.
The Lexington Herald-Leader sold papers at Commonwealth Stadium before the IMG contract went into effect in 2004. The newspaper faced opposition from UK officials and ultimately stopped distributing the publication because sales at games were dismal, Herald-Leader publisher Tim Kelly said.
Blanton said that if the Kernel wants to distribute newspapers at games, it could potentially get distribution rights from IMG.
“It’s a business decision,” Blanton said. “IMG has the exclusive rights, and they get to sell these rights. UK is just enforcing the contract.”
Fleischaker said the right to free speech is not limited to the media and includes ideas and other publications, but UK doesn’t prohibit distribution of those.
“Passing out papers is no different than handing out the Bible at games or even wearing UK shirts,” Fleischaker said. “People make all sorts of statements at these games, but they’ve sold the paper’s right to do this.”