Are Internet livestreams 'televised broadcasts'?

|The Volokh Conspiracy |

Yes, says the Ohio Supreme Court in State ex rel. Paluch v. Zita (Ohio Oct. 15, 2014):

In November 2012, voters in the city of Norton approved adding Section 3.20 to the city's charter. That section provides:

Section 3.20 Televised Meetings

Effective upon passage by the electors, the Administration and Council shall have up to sixty days to arrange for and commence public airings of all Council meetings, work sessions, and workshops. All aforementioned Council meetings shall be televised "live," in their entirety, without censorship and/or editing. Such televised broadcasts shall further be offered twice weekly during repeat airings for public accessibility. Additionally, Council shall arrange for copies of the recorded Council meetings to be available at minimum cost to the public upon request or at no cost to citizens supplying their own suitable medium for recording.

Since March 1, 2013, all meetings of the Norton City Council have been broadcast over the Internet by live video stream, accessible through the city's website. According to the city's administrative officer, the city rebroadcasts the meetings and workshops "on televisions located in the Norton City Council's chambers." The recordings are available upon request, at little or no cost….

The exhibit submitted by Paluch defines the noun "television" to mean electrical signals "transmitted by UHF [ultrahigh frequency] or VHF [very high frequency] radio waves or by cable and reconverted into optical images by means of a television tube inside a television set." Paluch's source for this definition is thefreedictionary.com, which in turn attributes the definition to the Collins English Dictionary (2003).

Earlier definitions of "television" referred exclusively to a system of transmitting images and sounds by radio waves, and did not include cable transmission. More recent definitions encompass all transmissions via "electronic or electromagnetic signals" and omit that the conversion from signal to picture be accomplished by a television tube. See, e.g., http://www.thefreedictionary.com/television, which attributes the definition to The American Heritage Dictionary of the English Language (4th Ed.2000, updated in 2009). These citations demonstrate that, far from having a plain and fixed definition, the word "television" has evolved over time to encompass new technologies, including the Internet.

Given the inherent fluidity of the term, we cannot say that the city of Norton abused its discretion by interpreting Section 3.20 to permit public airing of city council meetings by way of live Internet streaming. Paluch has failed to establish that Zita failed to perform a clear legal duty, and we therefore affirm the judgment of the court of appeals.

Three justices dissent, in an opinion by Justice O'Donnell:

[T]he Norton city charter has used the terms "televised broadcasts" and "airings," and those terms have established meanings. "Televise" means "to broadcast by television." Webster's Third New International Dictionary 2351 (1993); Merriam-Webster Online, available at http://www.merriam-webster.com/dictionary/televise (accessed Sept. 23, 2014). "Broadcast" means "the act of sending out sound or images by radio or television transmission." Webster's Third New International Dictionary 280; Merriam-Webster Online, available at http://www.merriam-webster.com/dictionary/ broadcast (accessed Sept. 23, 2014). And "airing" means "a radio or television broadcast," Webster's Third New International Dictionary 46, or "an occurrence in which a radio or television program is broadcast," Merriam-Webster Online, available at http://www.merriam-webster.com/dictionary/airing (accessed Sept. 23, 2014). The common denominator in each of these definitions is television—but the Norton city charter does not specify that live streaming video is a substitute for, or equivalent to, the mandate to televise the council proceedings.

Even if the majority is correct that viewing an Internet stream on a computer is tantamount to watching television, Internet streaming is not a televised broadcast; rather streaming is more accurately understood to be a unicast of media, in that there is one stream of data directed from a central server to the user's specific computer over an individual IP address. As one commentator has noted, "Unlike television and technology from its era, the Internet functioned as an individualized, unicast medium from the beginning. The Internet eschews the very concept of 'broadcasting' in favor of individual control—users requests information they want on their terms and that information is delivered."

This is not a case in which we are asked to construe older charter language adopted before the advent of newer technology; the electors of Norton were aware of the existence of Internet streaming in 2012 but nonetheless amended the charter to require the city to televise its city council proceedings, directing the city to use a specific manner of transmitting the audio and video of those proceedings in "public airings" through "televised broadcasts," and these are terms that are commonly understood to require the use of a television set. A televised broadcast may be streamed over the Internet, but a program transmitted solely by way of an Internet stream is not a televised broadcast.

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