DATELINE: February 11, 2008, Chicago
About ten days ago, we wrote about a number of churches that were upset over the NFL's crackdown on the rebroadcast by churches of the Super Bowl feed at church-sponsored events on Super Bowl Sunday. We had and continue to have no sympathy for these church groups. There is absolutely no question that the Super Bowl feed represents private property rights, giving the NFL the right to control how others use it.
Certainly these church groups wouldn't want Senator Arlen Specter telling them how they should conduct their affairs. They would be quick to argue protection under the First Amendment. That's why we find it so disturbing that...
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Specter is so quick to respond to the complaints by the church community over limitations on use of the Super Bowl feed by proposing legislation (Senate Bill 2591) that would take the NFL's property to support and further their missions. Specter's legislation would
create a new exemption for religious establishments. This legislation will provide churches and other houses of worship with the protection that they need to gather to watch the Super Bowl without fear of being sued for copyright infringement. This exemption will have limitations. For example, in order to qualify for the exemption, a church may not charge a fee to view the game. This will ensure that religious establishments do not unfairly profit from the NFL's copyright. Further, the exemption only applies to the live broadcast of a professional football game at the church or house of worship. A church may not tape the game to show at a later date or rebroadcast the game to another location. In other words, the legislation simply provides churches with a limited yet justifiable exemption to allow them to bring their congregation together to watch the Super Bowl.
Specter can put all the protections he wants into his proposal. It still boils down to forcing a private party to support religious organizations.
Think we are exaggerating? Well consider that in introducing the legislation, Specter said,.
[The restriction] is unfortunate because many houses of worship have used these events to reach out to their members, as well as potential new members, particularly young people. As Reverend Thomas Omholt, senior pastor of St. Paul's Lutheran in Washington, DC, stated in a recent Washington Post article, "It takes people who are not coming frequently, or who have fallen away, and shows them that the church can still have some fun." These churches do not charge their members to watch the game nor have they used them as fundraisers. Rather, these events provide churches with a means of connecting with the greater community and new potential members of their congregation. The uniqueness of these events is underscored by the fact that these churches do not use the Academy Awards or other popular television programming as a means of outreach.
Lots of other people would like to reach out to various communities through copyrighted material, but to do so they have to pay copyright owner for usage. If separation of church and state is a worthy constitutional value, the government should not be mandating that commercial concerns support religious institutions, which is exactly what Specter is doing.
To be clear, we don't necessarily view the legislation as unconstitutional, particularly given the existing exception for sports bars—although we do hope the NFL challenges it. We do, however, object to Specter's proposal on policy grounds. Specter clearly views religion as a social good. It probably is, but it is not for the government to favor it. Churches and other religious organizations also should be in agreement with us. This particular piece of legislation works in their favor, but it could set a precedent for future legislation that somehow restricts religious freedoms.
If Senator Specter wanted to take action, he should have proposed revoking the exemption for sports bars. That would have placed sports bars, religious organizations, and everyone else on equal grounds when it comes to NFL rebroadcast rights. More importantly, it would have recognized the NFL's private property rights.
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