The BulleTin • Friday, april 2, 2021 A5
EDITORIALS & OPINIONS
AN INDEPENDENT NEWSPAPER
Heidi Wright
Gerry O’Brien
Richard Coe
Publisher
Editor
Editorial Page Editor
Pass HB 3103 to
help the river
H
ouse Bill 3103 has hit a dam, and that could be bad for
the Deschutes River.
The problem with the river is that
it looks great as it moves through
Bend. Upstream? Well, upstream
flows can get so low that fish die and
the Oregon spotted frog is strug-
gling to hang on.
HB 3103 would create more flex-
ibility in how stored water can be
used. That flexibility of fluidity
could help the river upstream.
Think about Wickiup Reser-
voir. All the water in that reservoir
— as much as there is, at least —
is officially designated for use by
North Unit Irrigation District near
Madras.
If the goal is to best use the sys-
tem of water storage and water
rights in the basin to best meet
the water needs of the basin, lim-
its on use like that can get in the
way. Before you can remove those
limits and move a drop, there are
problems. There’s disagreement
about how water should be used.
Some people want more for fish
and frogs. Some want to take water
rights away from the people who
own them.
HB 3103 is a baby step. The Ore-
gon Department of Justice said that,
with some exceptions, Oregon’s Wa-
ter Resources Department doesn’t
have the authority to change stor-
age rights. HB 3103 would allow
a change for the use of water. So if
the desire was there, you could al-
low release of water from Wickiup
to help improve flows in the Upper
Deschutes to improve the health of
the river.
Many groups have testified in fa-
vor of the bill, particularly as it has
been slightly amended. Central Or-
egon LandWatch testified in favor
of the original bill. WaterWatch of
Oregon, Trout Unlimited and some
cities in Oregon have supported the
bill as amended.
The Oregon Farm Bureau, which
represents some 6,700 families, op-
poses it.
To begin with, the Farm Bureau
is skeptical that the Oregon Water
Resources Department no longer
has the authority to change stor-
age rights. The Farm Bureau also
wants other issues resolved, such as
the ability to move the location of
water storage and move a diversion
point. The Farm Bureau’s worry is
that those issues will continue to go
unresolved if they are not linked to
resolving change in the use of the
water.
That is a legitimate concern. It’s
simply easier to get agreement on
changing use than it is on moving
where water is stored or moving a
diversion point. We’re going to over-
simplify it: Environmental interests
see the benefit in changing the use
of water because it enables them
to achieve environmental goals
— more water for fish and frogs.
Changing where water is stored or
moving a diversion point can be
seen as reinforcing the status quo of
Oregon’s water system, which envi-
ronmental groups are not so inter-
ested in.
Does House Bill 3103 achieve
everything it could or everything
it should? No. The priority for the
Oregon Legislature, though, should
be to improve the state’s water sys-
tem. HB 3103 does that for the De-
schutes River and other places, in-
cluding the Willamette River. Wait-
ing around for perfect agreement on
the perfect bill will do nobody any
good. Pass HB 3103.
The three C’s drive
vaccine hesitancy
C
onvincing people to get their
COVID-19 vaccination can
be a mix of art and science.
Deschutes County did a survey
in March to try to unlock some
answers.
The findings weren’t that surpris-
ing. The basic assumption about any
vaccine hesitancy are the three C’s:
confidence, complacency and con-
venience. Confidence refers to vac-
cine effectiveness and safety. Com-
placency is the assumption that the
risk is low or other things are just
more important. And convenience
is about how it takes time, effort
and a jab in the arm to get vacci-
nated. The survey was conducted in
early March, and 390 people were
interviewed.
Among those who said they were
unlikely to be vaccinated, long-term
effects of the vaccine were a chief
concern, followed by the govern-
ment’s involvement in ensuring the
vaccines were safe and the possibility
of allergic reactions. People clearly
preferred the idea of getting vac-
cinated in a more intimate setting
such as a doctor’s office, rather than a
mass vaccination clinic. Online sign-
ups for vaccinations were seen as a
barrier for older populations and for
Latinos. Most people said they in-
tend to comply with mask mandates
even after they were vaccinated.
You have probably already made
up your mind if you are going to get
vaccinated or not. If you are lean-
ing no, we respect your choice. Just
think about if you should do it —
not necessarily for yourself — but to
help protect your friends and those
you love.
Editorials reflect the views of The Bulletin’s editorial board, Publisher Heidi Wright, Editor
Gerry O’Brien and Editorial Page Editor Richard Coe. They are written by Richard Coe.
Antitrust law is the key to making
the NCAA pay student athletes
BY SANDEEP VAHEESAN
Special to The Washington Post
A
day after Gonzaga and UCLA
won their Elite Eight contests
and joined Baylor and Houston
in the Final Four of men’s college bas-
ketball, the Supreme Court heard oral
argument in National Collegiate Ath-
letic Association v. Alston, a case that
could remake college basketball and
football in the United States. In Alston,
a group of basketball players and foot-
ball players challenged, on antitrust
grounds, the NCAA’s rules prohibit-
ing pay to players and won a partial
victory, with the district and appel-
late courts striking down the NCAA’s
ban on payments tied to education.
As the players successfully argued, the
NCAA’s caps on player compensation
restrain competition among colleges
for athletes’ talents.
The NCAA now asks the high court
to reverse the judgment in favor of the
players and grant it an effective anti-
trust immunity. (The Open Markets
Institute, where I serve as legal direc-
tor, filed an amicus brief in support of
the players.) At oral argument, several
justices expressed skepticism that col-
leges, operating through the NCAA,
should have the right to collusively
cap compensation to the athletes who
draw millions of fans, under the guise
of “amateurism.” They were right to
do so. The NCAA is, in effect, an em-
ployer cartel that deprives the predom-
inantly Black basketball and football
players of a fair share of the revenue
they generate.
The NCAA is a peculiar institu-
tion. Many of its Division I colleges
and universities run highly lucrative
basketball and football programs. The
NCAA and the major conferences
produce tens of billions of dollars in
annual revenue from the two sports.
Member colleges, however, share only
a small portion of this revenue with
the players because they agree not to
pay the players a wage and cap their
compensation at a scholarship cover-
ing tuition, room and board and an-
cillary expenses of college attendance.
Because not all players receive full
scholarships, some have reported not
having enough money to obtain food
and other necessities. Whereas pro-
fessional basketball and football play-
ers earn about 50% of league revenue
in salaries and benefits, their college
counterparts receive less than 20% of
their sports’ revenue in the form of
scholarships. Where do the remaining
80% of revenue go? In part to coaches
like Alabama’s Nick Saban and Ken-
tucky’s John Calipari, who each make
nearly $10 million dollars a year.
Ordinarily, the NCAA’s conduct
would be clearly illegal under the an-
titrust laws as an association of em-
ployers collusively holding down the
compensation of its workers. Until
recently, however, the NCAA success-
fully used a 1984 Supreme Court case
to defend its wage-fixing. In NCAA v.
Board of Regents of the University of
Oklahoma, the court struck down the
NCAA’s rules that prevented top foot-
ball programs from entering into sep-
arate television broadcasting contracts.
In passing, it also praised the social
value of amateur athletics. The NCAA
has since persuaded several courts that
this throwaway line in a decision inval-
idating the NCAA’s restraints on TV
contracts protected its restrictions on
compensation for players.
Despite the NCAA’s expansive in-
terpretation of Board of Regents and
earlier victories in litigation, the players
in Alston challenged the NCAA’s rules
against paying players and won at trial.
They successfully defended this victory
on appeal.
The courts, however, denied the
players justice in full measure. They
permitted the NCAA to introduce jus-
tifications of its restraints on player
compensation. While rejecting most of
the NCAA’s rationalizations, the lower
courts did credit one of them: Accord-
ing to the NCAA, a nontrivial segment
of college sports fans value watching
college sports because the players do
not receive competitive compensation
in the way professional athletes do. In
other words, capping player compen-
sation is a way in which the NCAA
differentiates its basketball and foot-
ball from the NBA, the NFL, and the
WNBA. Because of this consumer
“benefit,” the courts only invalidated
the NCAA’s restraints limiting com-
pensation to “education related pay-
ments.” The courts kept the NCAA’s
general ban on wages and salaries for
players intact.
In research published in 2015, most
Black sports fans supported paying
players, while only about 20% of white
fans favored this change. Notably,
white viewers who expressed the stron-
gest anti-Black racism were the most
opposed to colleges paying players.
There’s reason, though, to hope that
the majority on the Supreme Court
will ultimately find that the lower
courts did not go far enough. Our an-
titrust laws protect workers and other
producers, just as much as they protect
consumers. Employers like the NCAA
have no right to hurt their workers in
order to supposedly cater to viewer
preferences.
e e
Sandeep Vaheesan is the legal director at the Open
Markets Institute, an anti-monopoly research and
advocacy group.
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Be careful when cheering Dominion lawsuit against Fox News
BY MARGARET SULLIVAN
The Washington Post
W
hen Sidney Powell and Rudy
Giuliani became fixtures on
right-wing media with their
outlandish election conspiracy theories,
their disinformation was more than just
false. It was harmful.
Repeated appearances by those for-
mer President Donald Trump allies on
Fox News, Newsmax and One Amer-
ica News helped convince millions of
Americans that the 2020 presidential
election was rigged. Some who ingested
the lies ended up storming the U.S.
Capitol, where lives were lost or ruined
on Jan. 6. Even now, a substantial chunk
of the country refuses to accept the
Biden presidency as legitimate.
Given that harm, it’s easy to under-
stand why defenders of democracy
might be cheering the billion-dollar
lawsuits filed against Fox by two vot-
ing-technology companies, Smartmatic
and Dominion Voting Systems.
The two companies are seeking
damages of more than $4 billion from
Fox, claiming that their corporate repu-
tations and employees’ well-being were
deeply harmed by lies that their equip-
ment was used to manipulate the vote.
In some ways, it’s a relief to see some-
one hold Fox to account, especially
since nothing else seems able to restrain
right-wing media outlets from spread-
ing disinformation. Fox, calling the
suits meritless, has said it is proud of its
election coverage.
The suits (along with signals that
more are coming) have had an appar-
ent effect: Fox Business abruptly ended
Lou Dobbs’s show, without saying why;
unusual corrective segments have aired;
the election-lie story has simmered
down somewhat.
For those who care about the real-
ity-based news media, there’s a down
side. Nobody is thinking about that
more intently than the people at a small
investigative California newsroom
called Reveal, run by the nonprofit
Center for Investigative Reporting.
“These defamation suits can deci-
mate the legitimate press,” said D. Vic-
toria Baranetsky, general counsel at
Reveal.
Reveal was hit by a defamation case
after its two-year investigation tied a
charity, Planet Aid, to a cult and raised
serious questions about Planet Aid’s
spending. It’s the kind of watchdog
work that investigative journalism is
supposed to do.
Planet Aid sued for $25 million —
twice the annual budget of the Center
for Investigative Reporting. A judge
threw the case against Reveal out of
court last week, but it took four years
and millions of dollars. And, in its
wake, the defamation-lawsuit playbook
remains. It’s an existential threat for
some media companies.
“Other news organizations might
look at this lawsuit and decide that
reporting on powerful or deep-pock-
eted organizations isn’t worth the risk,”
Baranetsky wrote in an op-ed in the
Columbia Journalism Review, co-writ-
ten with Alexandra Gutierrez, a First
Amendment fellow at the Center for
Investigative Reporting.
It’s happening in an atmosphere in
which long-standing media rights are
under siege in other troubling ways.
Just weeks ago, federal appeals court
Judge Laurence Silberman sent chills
down the spines of free-press advocates
when he issued a harsh dissenting opin-
ion in a defamation case decided by the
D.C. Circuit.
Silberman, one of the most promi-
nent and influential conservative judges
in the country, attacked Times v. Sul-
livan — the 1964 case that solidified
press freedom in the United States by
establishing a high standard for public
officials to sue over libel and defama-
tion. In it, the Supreme Court said that
even if a news report about a public fig-
ure was false, it couldn’t be the basis for
a libel judgment unless it showed “reck-
less disregard” for the truth.
The ruling reflects the principle that
news organizations, staffed by falli-
ble human beings, will sometimes get
things wrong and must be allowed to
do their jobs with some protections
from punishment.
These long-standing protections are
what Trump railed against when he
promised, years ago, to “open up” the
libel laws and get money from media
companies for stories he didn’t like.
It would be comforting to think that
defamation suits won’t ward off good
journalism while seeking to punish the
spreading of irresponsible lies. Com-
forting — but far from a sure thing.
e e
Margaret Sullivan is The Washington Post’s media
columnist.