[NOTE: This page will remain a "work in progress." But there is plenty here to get you started. By checking these dates (year-month-day format) when you regularly return to this page you will know if it has been modified in some way since you last saw it. First uploaded 20070723; substantially revised 20070729 (for first 4-1/2 weeks of class); 20070812; 20070815.

General Information: The Basics First Week Non-Reading Assignments Response to Class Scheduling Email Email Address Personal Bio Writing Assignment Reading Assignments

Annotated Readings: Discussion Questions and Commentary     Background and Introduction Introduction Supplement     The Basics 1. Why do we care? 2. The First Amendment 3. Administrative Law and Agencies 4. The Property Called "Spectrum" 5. Rationale for Broadcast Regulation     Journalism Law: Defamation     FCC Regulation: Political Speech     Cable Regulation     Privacy     Copyright     Media Concentration

Class meetings and exam schedule: The class meets Wednesday and Thursday afternoons for 14 weeks in Room 125, from 3:35 to 4:55 p.m. on Wednesdays and 3:35 to 5:15 p.m. on Thursdays. The first class meeting is Wednesday, August 29. There are no class meetings November 21 and 22 (Thanksgiving recess). The last class is Thursday, December 6. The final is currently scheduled for Tuesday, December 18, at 8:30 a.m.

Casebook:  (1) Our casebook is Carter, Franklin and Wright, The First Amendment and the Fifth Estate (6th ed. 2003) with 2007 Supplement. (When picking up these books be aware that (a) our authors have another casebook, called The First Amendment and the Fourth Estate, (b) there may be used copies of the 5th edition of our casebook, and (c) that neither will work.) (2) Also pick up a copy of a new book of readings, Nicholas Johnson, Your Second Priority: A Former FCC Commissioner Speaks Out (2007).

Reading Assignments: Your source for anything you'd ever want to know about this class can be found through the class Web site: http://www.uiowa.edu/~cyberlaw/lem07. The reading assignments are found in a link from there: "Summary of Readings." If you do not have Web access, the documents can be made available to you in hard copy from my assistant, Ms. Lisa Schomberg, Room 405 (hours: 8:00 a.m. to noon). The "Annotated Readings" section of this Syllabus (below, on this Web page) is a guide to our discussion of those readings. And be sure to check out "Online Resources" for links to online sources of relevance to our assignments, of general interest -- and of potential use in looking for jobs after graduation.

Purpose:  The "information economy" now constitutes over one half of our gross domestic product.  This course is designed to help you identify, and think through, some of the legal and public policy issues of this Information Age -- with an emphasis on media-related issues.  Law of Electronic Media (LEM05) is one of a cluster of intellectual property courses offered at the University of Iowa College of Law including Copyright, Cyberspace Law Seminar, Entertainment Law, First Amendment seminars, Patents and Trademarks, and Sports Law -- among others.  (None is a prerequisite.) More detail regarding the subject matter to be covered is contained in the "Summary of Readings." The "Annotated Readings" section of this Syllabus (below, on this Web page) is a running commentary, with some discussion questions, that is intended to be a helpful assist for students in understanding the relationships between assigned readings, what to look for while reading (questions to answer, and be prepared to discuss), and other comments from the instructor that may, among other things, provide some preliminary insight as to what may appear on the final exam.

Office Hours and Contacts: Regular office hours normally will be Monday, Tuesday and Friday, 10:00 to 2:00 (less occasional absence for lunch; BLB 445; phone 335-9146). But you should feel free to walk in any time I'm there and the office door is open; appointments aren't necessary. (Of course, if for your convenience you'd prefer to make an appointment at any mutually convenient time, please do so. The best means of communication is email. My e-mail address is available (along with other "coordinates") at http://www.nicholasjohnson.org/mainpage.html#Contacts Nicholas, my general Web site is http://www.nicholasjohnson.org, and my Blog is FromDC2Iowa.blogspot.com.  My assistant is Ms. Lisa Schomberg; her office is Room 405, her office phone number is 335-9091; her office hours are 8:00 a.m. to noon.

Attendance:  You are urged to make the effort to be prepared for, attend, and participate in every class.  You probably already do that. But know that the ABA, AALS, University of Iowa and College of Law require that students be in "regular attendance."  For this course, "regular attendance" will be defined as 82 per cent of the 42 classroom hours (the equivalent of 5 1-1/2-hour class sessions). In other words, there are no "excused" or "unexcused" absences, just absences. (It's just friendly advice, not a requirement, but you might want to think about saving the permitted absences for any semester-end emergencies (e.g., funerals, weddings, fly backs or other obligations). Participants attending less than the minimum may be dropped.

Class Ombudsperson: Comments, suggestions, complaints? I'm available to listen in person, by phone or e-mail. But what if there's a concern you'd like to get to me anonymously? You can do that, too -- by sharing it with the class ombudsperson, someone you and your classmates will elect during the second or third class session.

Exams, Grades:  To provide the instructor and students with feedback and incentives, there may be (almost always with advance notice) brief quizzes (depending, in part, on the level of class participation without them). The final will be a three hour (total) (a) closed book short answer or multiple-choice exam (probably short answer) followed by (b) an open book essay exam.  Ten percent of the course grade will be based on class participation.

Final exam laptop option, per law school administration: "Students in this class may choose, but will not be required, to write the essay portions of their final exams on laptop computers.  Those choosing to do so must supply their own computers, which must meet certain specifications, and use the SecurExam software which is sold in the ISBA Bookstore.  Information on those specifications and on the software may be found at www.law.uiowa.edu/students/exams-laptops.php.  Updates on deadlines and other information regarding laptop exams will also be distributed via email or in The Docket. Any questions relating to computers and the software should be directed to Student Computer Services in room 130 of the Library."

Response to Class Scheduling Email: Please respond as promptly as possible to an email you should have received from me on July 28 regarding the impact on you (if any) of a slight shift in class meeting times

Your Email Address: Please provide me your preferred e-mail address (either confirm that you use your default UI e-mail address, or provide your preferred alternative email address). Email is the quickest and surest way to get class information to you. (If you are unable or unwilling to receive email, other arrangements can be made.)

Among the greatest resources of any law school are not only the intellectual quality of its students, but also the diversity of their background and experience. We are particularly blessed at Iowa in that respect. The more we can all know about each other, and the resources we bring to the classroom, the more each of us can take from it. Besides, it's more fun knowing who these folks are with whom you are about to spend 42 hours and more of your life.

So, please hand in to Ms. Schomberg or me by September 4, 2007, 11:30 a.m., a brief, one-page essay about yourself that can be shared in a "bio booklet" with other members of the class. This is something that has proved popular with prior classes and that I think you'll also find interesting and worthwhile.

You need not, but may, examine examples of what other students have written in past classes, available from Ms. Schomberg. You'll see that some are humorous, most are serious, some use the entire page, others are more brief. We'll put together a comparable booklet for our class, make copies, and give you one -- but limit the distribution to our class members (i.e., I won't post it on the Web).

Obviously, if there is anything you want to keep to yourself you are a skillful enough writer to do so.  There's nothing you must include.

But while you wait for the muse to strike, be aware that the following kinds of things might be interesting and useful:

(1) something of your family, community and upbringing,

(2) early ambitions, goals or professional interests,

(3) college majors, intellectual interests, sports and other activities,

(4) work, travel or other job related experiences,

(5) your current obligations and environment outside of law school (e.g., marital and parental status or other family responsibilities; nature and demands of outside employment; hobbies or other activities),

(6) areas of specialization in law school, student activities, or legal internships,

(7) any experiences working for (or dealing with) print or electronic media, advertising, public relations or political campaigning,

(8) future goals, expectations and plans for using your legal education,

(9) electronics hobbies (e.g., amateur radio licensee, Web site or blog, video or still photography).

Format Request.  Please use (1) one page maximum, (2) single spaced, (3) with text sufficiently dark to make machine copies possible, (3) one inch margins all around, (4) a heading that includes your name and date, and (5) any reasonable font.

NOTE: For the dates, subjects and pages of assigned readings, see "Summary of Readings."

The following commentary about the Law of Electronic Media course is at least intended to be helpful. Whether you find it so is obviously for you to judge. Certainly the discussion questions should at least give you a bit of a heads up on what will probably be discussed in class.

There is no "must cover" material in this course (in the sense of specific subject matter; obviously there is a "must cover" need to cover a semester's worth of material).

Very little of what we study (though some, I suppose) will be on a bar exam. Moreover, if we were to thoroughly cover "the subject" -- if defined as including telephone regulation, "entertainment law," the Internet, the legal issues created by all electronics (e.g., cell phones, amateur radio, communications satellites), and a more complete examination of the FCC, other relevant agencies (e.g., the FTC's regulation of advertising), and the impact of other areas of law on all of the above -- we would need at least four, four-semester-hour courses extending over as many semesters.

So we have to pick and choose anyhow. Obviously, given this flexability, you are certainly able (though not required) to have an impact on what we do, and do not, cover. Just pass your suggestions and preferences along to the instructor. (The "Summary of Readings," linked above, is a "default" -- that is, if there are no alternative student preferences that's what we'll aim to cover.)

The goal of this course is simply to "demystify" these subjects for you sufficiently that, if you (or future clients) decide you need to get into some of these issues more deeply, you will know enough to know what you know, know what you don't know, and know how to proceed to find the answers.

By the time this semester is over we will have come at the "Law of Electronic Media" from a number of directions.

Some of it is almost a sub-set of administrative law -- administrative agencies such as the Federal Communications Commission issuing licenses and regulating content, or a local city council awarding cable television franchises and supporting local "public access" video producers.

We will need to explore enough of the historical and background of the media to understand the significance of today's law and regulation; the rapidly advancing "convergence" of main stream media and blogs, of television networks programming two-minute "TV shows" that can be viewed on a cell phone, and the evolution of "advertising" into "product placement."

You won't need an aptitude for science or electrical engineering, but we will occasionally need to develop at least a superficial understanding -- of, for example, how radio waves work when explaining to our client, with a "daytime-only" AM radio station, why we can't get her a license to operate at night.

The various interpretations of the First Amendment's protections will often weave their way in and out of our material (such as its impact on the old common law of defamation).

And then there's what we might call "journalism law" -- a matter of concern to your clients whether they are journalists, editors and media owners, or the angry subjects of their stories. And we'll probably jump around a bit among the issues raised by these various approaches.

(If you're a serious student of "communications" you may want to review the "Introduction Supplement" as well.)

As you'll see from the "Summary of Readings" I've divided our the material into three major blocks: "The Basics" (e.g., First Amendment), "FCC Regulation" (e.g., Political Speech) and "Journalism Law" (e.g., Defamation).

1. Why do we care?

I want to start off our semester together with an excerpt (about 20 minutes) from the documentry "War Made Easy" (2007) [15:53-36:40], and sometime thereafter a shorter excerpt from "Wag the Dog," as a way into an opening question to you: Why do we care about the media (or don't you)? What difference does it make, or could it? Why do public officials care about it? What are the implications of your answers for our role as lawyers in a mediated society?

Is television "just entertainment" -- as former FCC Chairman Mark Fowler once characterized it in defining the TV receiver as "a toaster with pictures"? Or, is it the most powerful force humankind has ever unleashed upon itself for "the manipulation of consumer demand" (economist John Kenneth Galbraith) or the most effective means available to government officials for accomplishing the political imperative (in a democracy) of "manufacturing consent" (Noam Chomsky)?

Your attitude, your opening assumptions, about much of what we'll be discussing this semester will be shaped by your personal resolution of these questions.

The first week or so we will explore some of these questions with some additional readings, and video excerpts in class, because I thought it might be useful -- as well as fun -- for us to explore together some very basic media issues before getting into the details of rules of law, statutory provisions and regulations.

Of course, we won't agree about much. In fact, we'll have much more interesting discussions, and learn more from each other, if we don't.

While I don't care how you approach these issues ideologically, I do care that you think about all the ways in which the media can potentially affect every aspect of our lives -- our support of the war, our views regarding the role of women, the products we buy, what we know about the rest of the world, the growth (or demise) of online gambling, the candidates we nominate, whether we care (and do anything) about global warming, and so on without end.

Because of that importance you may think we need more regulation, or less; that the media are destroying the moral fabric of our families, or that they are creatively changing values in constructive ways; that we're in danger of fewer and fewer corporations controlling what we know and think, or that only through such economic power can the media remain independent of government and other large institutions. I care less about the positions you hold than that you have data, sources, and solid analytical presentations to support them.

My primary concern is that you approach the class with the realization that -- while the material is fun to think and talk about -- whatever law of electronic media our legal system ultimately evolves will be a matter of enormous significance in a variety of ways throughout the rest of your lives -- not to mention your practice of law.

Here are some of the questions I'd like you to think about while you're doing the assigned reading.

What does "the media" mean to you? What do we mean by "convergence"? Do you read newspapers regularly; if so which ones? Do you load and listen to (or watch) news and commentary on your iPod? Have and use TiVo? Subscribe to "television" programs from iTunes? Read newspapers online? Read blogs? Have you lived through a "media revolution," or are we at just one more way point along a centuries long expanding and evolving timeline?

        o Do you believe that any corporation, in any industry, has any moral/ethical obligation (as distinguished from constitutional, legislative or regulatory constraints) to offer the community anything other than profit maximizing behavior?

        o If you do, then it isn't that much of a stretch to conclude that broadcasters also have such obligations.

        o If you don't, we then have the question as to whether there is something special and unique about broadcasting [i.e., "the media"] that would cause you to accept the idea that this industry has obligations to society above and beyond those of other industries.

        o Even if there are such obligations, are "market forces" enough to guarantee they will be served? If so, or if not, why?

        o The Supreme Court's view with regard to all media, not just newspapers, is essentially that, as I sometimes characterize it, "with the First Amendment right to speak goes the First Amendment right to censor all others" (from using your monopoly -- or oligopoly -- conduit; i.e., dominant newspaper, like the Los Angeles Times, or local network affiliated TV station). Does that trouble you? Why or why not?

        o Are you at all troubled by the interlocking of the media's content with its commercial interests and advertising (e.g., "product placement")?

        o Do you believe that you are influenced in your buying decisions by advertising? (Consider this question while reading, from Chapter 11 of Your Second Priority, the sub-section headed "Manipulation Through Advertising" in  "Media as Politics: What's a Voter to Do?" and, from the book, Nicholas Johnson, Test Pattern for Living (New York: Bantam Books, 1972), Chapter 4, "Caution! Television May be Hazardous to Your Mental Health.")

        o What is your take on the role, in fact, of the media in the democratic process of politics (i.e., agenda setting, public policy discussions, nominations, campaigns, elections) and governing? Is there anything about that role you find troubling, and if so, what? If you were in a position to do so what standards (i.e., legislation, regulation, practices) would you like to see enacted -- or repealed? (That's something to think about while reading the sub-sections headed "The Obligations, and Limits, of Capitalism" and "Adequacy of American Journalism" in "Forty Years of Wandering in the Wasteland," Chapter 5 in Your Second Priority.)

We will be watching a seven-minute video excerpt from interviews and speeches of Noam Chomsky. If you are unfamiliar with Chomsky read these excerpts from his book, Understanding Power (2002), http://www.uiowa.edu/~cyberlaw/lem02/chomsky1.html. They provide an alternative view of how, why, by whom, and to what end American mass media content is controlled. Start with the "Note" at the top, and then scroll down to the sub-head, "The Media: An Institutional Analysis" (about one-third of the way into the excerpts, p. 13; (pages in the book are indicated in brackets in these excerpts, e.g., [13]), and continue on through the material following: "Testing the 'Propaganda Model,'" "The Media and Elite Opinion," and "Filters on Reporting" (p. 26). If, by then, you need (or are intrigued enough to want) more evidence of the thesis you can go back and read the opening two sections, "'Genocide': The United States and Pol Pot" and "Indonesia's Killing Fields: U.S.-Backed Genocide in East Timor."

To what extent is the Internet the only (or primary) form of media, and everything else (e.g., newspapers and television, advertising) just an advertisement for a Web site?

2. The First Amendment. Although for some of you this will be a review from Constitutional Law, you need not have studied the First Amendment before to understand the readings and discussion we'll have (much of which is unique to this course). Figuring out where a 19th Century notion of "free speech" fits in an analog and digital world of over-the-air and cable "broadcasting," what it means, who has it, and why, means that we often will be referring back to this material and analysis throughout the course.

3. Administrative Law and Agencies. You are probably aware that the Federal Communications Commission regulates broadcasting. But there are a number of other administrative agencies that impact upon the industry as well. We won't dwell on them, but it is useful for us to remind ourselves of the history and role of administrative agencies (as distinguished from courts, legislative bodies, and executive branch agencies) as we begin our exploration of the FCC's relationship to the electronic media.

Just as the "Introduction Supplement" was not "required reading" but something useful to those engaged in serious study of "communications" in general, so the following link takes you to an article that is also not "required" reading at this time (although it will be later when we discuss licensing) but something you will find useful in practice.

A great deal of the practice of law involves administrative agencies of some kind, as distinguished from courts. When your client is a business that needs a zoning variance you'll be dealing with an agency. When you get it incorporated you'll file its articles of incorporation with an agency. When it gets big enough to go public (thanks to the quality legal service you've been providing) you'll be filing documents with another agency -- the SEC. A City Clerk is a kind of agency, as is a County Auditor or Recorder. Tax returns (and, if you're not careful, audits) are, as you know, a matter for an agency called the IRS.

So an administrative law practice is going to be pretty difficult to avoid if you're going to practice law at all.

But one of the things you'll soon discover is that administrative practice is as much a matter of institutional sociology as law. Just as a judicial clerkship will give you insights into the workings of courts and the minds of their judges, so working inside an agency -- almost any agency -- will broaden your understanding of how they work and why.

An alternative to working for one is to talk to those who do -- or read an article they've written. The problem is, there aren't a lot of articles like that.  Here's one:  "A Day in the Life: The Federal Communications Commission" (1973) [the link goes to a Hein Online pdf file of text and footnotes; if you find it easier to read, here is a link that goes to a "text only" version in html].

This is a Yale Law Journal article the instructor co-authored while an FCC commissioner along with one of his legal assistants. The title refers to a line from a Beatles' song lyric, and then uses the entire Commission agenda from one meeting day to support the argument that everything the F.C.C. does is seriously flawed in one way or another. You need not read word for word all of the text and footnotes. One of the points of your looking at this article at this time is to give you a sense of the wide range of responsibilities of the Commission, the volume of its work, and a view of its operations from the inside -- although we'll be focused on its regulation of broadcasting and cable, those are but a small portion of its overall responsibilities (as this article describes).

If you'd like to just grasp the general idea without going through the whole thing, read through "Briefing for Commissioners" [pp. 1575-79] (to, not through, "The Hearing Agenda"), and, going to the end of the piece, the "Conclusion" [pp. 1632-34], along with at least one of the following subsections ("The Aural Agenda" is the shortest; you can find them by using the "Edit" and then "Find in Page" features on your browser to save scrolling through the whole document): "The Aural Agenda," "The Television Agenda," "The Broadcast Agenda," or "The Complaints and Compliance Agenda."

As you anticipate practicing within, or before, an administrative agency you will immediately recognize that the kind of "insider" descriptions of agency process provided by this article are pretty hard to find in the literature; you may want to read the whole thing. Don't be discouraged by this piece; not all agencies are this bad. Know also that this is a description from the early 1970s; some things about the FCC today are worse, and undoubtedly some are better.

4. The Property Called "Spectrum." Now I know that you came to law school to get away from mathematics, science and engineering, so don't panic over this one. Hundreds of your predecessors have handled this simplistic approach with flying colors and so will you.

But once we grasp the improbability of two humans ever understanding each other (a subject discussed in the "Introduction Supplement"), we need to address the process by which we hitch that effort at communication to some transmission medium. If we were studying "the law of smoke signal media" or "the law of drum media" we would need to know something of the impact of wind on smoke signals, or that drum beats, like other sounds, decrease in volume with the square of the distance from the drum.

Similarly, there are a few basic facts about the radio waves -- (used for television as well as radio) to which we are attempting to hitch pictures, speech and music -- that we need to know as lawyers. Why can't your client's "daytime-only" AM radio station broadcast at night (which would probably double her income during the winter months when "drive time" is dark)? The answer lies in electrical engineering as much, or more, than law and regulation.

If you have not yet done so, this would also be a useful time to read "Law of Electronic Media: Concepts, Perspectives and Goals." Law of Electronic Media, like any Information Age inquiry, requires some "thinking outside the box." This piece provides an early clue as to where electronics (and business) are headed and why, and will help to understand some class discussion. You might want to specially focus on the following subsections: "Information Age, Information Economy," "Electrical Engineering," "Why 'FCC Regulation of Broadcasting and Cable'?," "Orders of Magnitude and the '99.9%-Off Sale,'" "Information Rich, Information Poor," and "Standards."

5. Rationale for Broadcast Regulation. What is the justification, the rationale, for government regulation of broadcasting? Who first decided broadcasting needed to be "regulated" anyway, and why? Why not just leave it to "the marketplace" (or have we)? What is the legal (including constitutional) justification for regulating broadcasting, or at least regulating it differently from the regulation of, say, newspapers or movie theaters?

Note: What is here called "journalism law" involves a "regulation" of electronic media (and often print as well) that comes from statutory and case law but does not, normally, involve what we would characterize as "administrative regulation." The fact that it is of interest to "journalists" does not mean it is not also of concern to media owners (who often end up paying the damage awards or fines), or those who are suing them -- any of which may turn out to be your future clients.

We're going to start with one aspect of journalism law (defamation) and then return to more later in the semester.

1. Defamation [Casebook Chapter XIV]

Note: We lead with defamation because, among other reasons, as our authors note, "It is certainly the most extensively litigated area of media law." (p. 861). Here's some of what we'll be exploring:

    a. The Elements. What do you have to show to establish a case of "defamation"?

    b. The Constitution (New York Times v. Sullivan). What on earth does the First Amendment have to do with defamation?

    c. Practical Considerations for Media Defendants. How to avoid (or handle when necessary) a libel suit when your client is the defendant.

Given that defamation is "certainly the most extensively litigated area of media law" this section of the book [Chapter 14, pp. 861-924] is extraordinarily practical and applicable to your future career -- whatever it may be -- as well as an interesting body of law, and something that may well be at least touched on in the bar exam, as well as, of course, our final exam.

Take an overview look at what we're about to do -- even though we won't be covering all of this in one class. It will give you an idea of where we're going and why. It will also give you a clue as to when, where and why I will occasionally be jumping around through the material a bit, rather than just plowing through it.

1. What is this cause of action about? Don't just intellectualize that question. Think about your own past experience. Have you ever had to deal with what you felt was an unfair/untruthful characterization of your character, or something you -- or someone you cared about -- had done? It might have been as trivial as a parent, or sibling, wrongly charging you with having eaten the last of the cookies. It may have been more serious. Aside from what you thought about that experience at the time, how did you feel? Use some actors' studio techniques here to try to recreate those feelings. Were you thinking about money damages at the time?

2. Why was/is defamation a matter that need concern the state?

3.  After New York Times v. Sullivan, and the Supremes bring the First Amendment into play, why do we need even to  bother with the old common law, and state law, of defamation? Why can't we just skip the first few pages and go directly to Sullivan?

4. Learn, be able to recite, and apply [see 7, below], the basic elements of common law defamation. They are laid out on pp. 863-68, 871 (last paragraph). And see defenses and privileges, pp. 882-84, and criminal and group libel, pp. 918-20.

5. Remedies are discussed on pp. 917, and damages on p. 869 (with the implications of the "slander" and "libel" distinction). And consider "fault" and the distinction between print and broadcasting, p. 871. Consider, in this context, Turner v. KTRK, pp. 911-12, n. 12. And we might as well discuss at this time the authors' "Practical Considerations for Media Defendants," pp. 920-23.

6. You then get a little dose of defamation in cyberspace with the introductory material, p. 872, and Zeran case and notes, pp. 873-81.

7. Before we turn to the law of New York Times v. Sullivan, we will want to consider the facts. Be prepared to apply what you have by now learned about the pre-Sullivan common law of defamation to the facts of Sullivan. In other words, how would you have analyzed Sullivan's case against the Timesprior to Sullivan having been decided by the Supreme Court?

8. New York Times v. Sullivan, pp. 885-91. What techniques of legal argument does Justice Brennan use to reach the conclusions he does? How do you go about proving "actual malice"? See Herbert v. Lando, p. 910, n. 11. And notice how the Court even brings the First Amendment into questions of burden of proof when defamation cases involve speech regarding matters of public concern, Hepps, p. 913, n. 15, and Anderson v. Liberty Lobby, p. 914, n. 16.

9. Sullivan's progeny. How prescient was Professor Kalven, p. 892, n. 4? Was Rosenbloom, p. 894, n. 10, a logical and predictable progression from Sullivan?

10. Gertz, pp. 895-905, and its notes, pp. 905-16.  What happens to Sullivan and Rosenbloom after Gertz? The trial judge ended up guessing wrong, but why was his error a brilliant bit of lawyering anyway? In the notes give special attention to Firestone, n. 6, National Audubon Society, n. 7, Wolston, n. 8, Proxmire, n. 9, and Dameron, n. 10.

11. Finally, we have the tort of "infliction of emotional distress," pp. 923-24. What is its relationship to defamation? What limitations must be imposed on the tort to avoid its swallowing defamation whole, along with all its limitations?

Timely this political fall, here's where you'll learn about "equal time" (there's no such thing), "Sections 315 and 312," and whatever happened to the Fairness Doctrine.

Here are some issues to think about as we review government regulation of broadcasting generally, and then address the regulation of broadcast political speech in particular:

• Why are there any governmental standards touching on the speech content of broadcasters anyhow? We'll address that with a review of one of my favorite broadcasting opinions, Red Lion, which we discussed earlier. Your position on many of these policy questions may come from your general political/ideological/economic orientation. For example,

• You'll recall we discussed earlier whether there is something special and unique about broadcasting that would cause you to accept the idea that this industry has obligations to society above and beyond those of other industries.

• But regardless of how you come out on that question with regard to broadcast speech generally, are there considerations involving broadcast political speech that require special treatment?

• Whatever you and I may think, the law does impose unique obligations on broadcasters, especially (and our present focus) when it comes to political speech. What are those obligations/limitations?

• Do you think they are appropriate? Regardless of your answer, what is your rationale? Are you persuaded by the Court's reasoning in Red Lion?

• How do you feel about "the Fairness Doctrine"? (It's been repealed by the FCC.) Did it serve a useful purpose? An essential purpose? Was it effective? Did it constitute an unconstitutional and unnecessary interference with broadcasters' free speech?

• Now review again Tornillo, seemingly involving "the same issues" in the context of newspapers. If you strongly disagree with the unanimous Court in Red Lion you'll like the Tornillo opinion. If the Red Lion Court persuaded you, Tornillo may raise questions. Regardless of where you come out on Red Lion, how can the two opinions be reconciled?

Much of our discussion of the political broadcasting rules primarily involves gaining familiarity with the history and substance. But there are policy questions here as well. What are the implications of media rules for political structure -- and vice versa? What alternative political structures and systems, and related political media practices, might we have? For example, what are the advantages and disadvantages in a democracy of strong third parties? What rules and practices do we have that encourage or discourage them in the American political system? How do our media rules and practices (e.g., for debates) impact on third party existence?

    a. FCC Jurisdiction. "Where is it written" (in the Communications Act of 1934) that the FCC can regulate cable TV?

    b. "Deliberately Structured Dualism" and Municipal Franchising. How does it work to have both federal and local jurisdiction of cable? And where does a city's power to regulate (to "franchise") a cable company come from anyway?

    c. Rate Regulation. Is there any? Who does it and how?

    d. Copyright. If you can't share songs via Napster with your buddies how does the cable industry get by with stealing the broadcasters' copyright-protected programs off the air and then selling them to their customers?

    e. "Must Carry" and Access Channels. Why isn't "the marketplace" an adequate check on which channels a cable system carries and which it chooses to leave behind? And what are these "access channels"? Do you think they should be mandated, encouraged, left up to the cable company, or prohibited? Why?

In preparing yourself to comprehend and discuss this material, keep the following (illustrative, not exhaustive) questions/issues in mind:

• Finally -- or, perhaps, first -- it is important to be able to feel, as well as to intellectualize, what these cases are about.  In "actors' studio" fashion, try to recall an instance in which you thought your privacy was inappropriately compromised.  What were your feelings at that time? Why is this understanding important to your comprehension of privacy law?

• Prior to/without regard to "media," and without regard to newer technologies (such as the Internet), what are the contexts in which the law has recognized a right of "privacy" and some examples of each?

• What is it precisely/how would you describe the nature of the interest that the law is protecting in these cases (e.g., is the trespass relevant in the privacy trespass cases; and, by contrast, how is "privacy" relevant to the Onassis and kidnapping cases on p. 824)?

• How would you go about the task of figuring out what is a "reasonable expectation of privacy"?  What factors might modify that expectation from one context/person/time to another?  Do you agree with the Dietemann court, p. 830, that we "should not be required to take the risk" of recording? (p. 831)

• Where did "for advertising purposes, or the purposes of trade" come from?  Is it an accident of history or a rational standard?  How does the right protected differ from colloquial "privacy"?

• What are the implications of "privacy law" for the news media?  What considerations do the media bring to the balance?  Are ethical/professional standards enough, or do we need "law"? Are there categories of facts that should not be published under any/most circumstances?  Why?

• What are some of the technologies available today with privacy implications?  Do they create a unique set of new issues/problems, or are they merely extensions/applications of the old ones?

As is obvious, and we've mentioned before, copyright is a semester long course, and one you may well want to take if you are emphasizing intellectual property in your study of the law. A couple afternoons' reading assignment, and discussion, is certainly no substitute for such a course, not to mention the experience of actually practicing copyright law for a few years. But our coverage should be enough to "demystify" the subject for you; you'll get a sense of what it's about, what you know, what you don't know, and you'll end up with at least some clues as to how to go about finding out what you don't know.

Copyright, conceptually, stands apart from our other categories of the "Law of Electronic Media." It has a long common law, constitutional and statutory history -- here and abroad -- as well as being embodied in one of the oldest bits of international law. Like broadcasting stations and the FCC, copyright also involves an administrative agency of sorts (the "Copyright Office"). Subsets of copyright law, however, are very much a part of the law of electronic media; for example, "music licensing" [Chapter XIII, C.; almost all of which we'll summarize/skip for reasons I'll explain at the time], and the relation of copyright law and regulation to the content of cable television, a subject we will cover [Chapter IX, A.].

1. One of the first questions is always "How can you imagine copyright law being relevant to you?" What clients might you have who could have copyright questions? How might you, personally, be concerned about a copyright issue?

2. Not incidentally, what are the distinctions between copyright violations and plagiarism -- as both are matters of relevance to you now, as a law student?

3. In understanding any area of law it's always useful to know how today's law has evolved to what it is. How, and why, did concepts of copyright come into existence? Where does the congressional authority come from to legislate on these matters? How did the earliest provisions of U.S. copyright law differ from those today?

4. And then there are the policy questions. What's its purpose? What are we trying to accomplish with copyright law? What about it represents the "ends" and what the "means"? To the extent it involves a balancing of interests, what are they? Do you think today's provisions strike the proper balance? Why, or why not? What challenges to copyright are created by technology, e.g., the digitization of virtually all intellectual property and the existance of the Internet?

5. Not to be overlooked is "The Law." As you'll see, this is -- at least for us in this course -- primarily a matter of statutory study.

a. Who gets to have the copyright, and how do they go about getting it?

b. What can you copyright? What cannot be copyrighted?

c. If you do own a copyright to intellectual property, what do you get; what can you do and profit from; what can you preclude others from doing with "your property"?

d. How long do you retain these rights?

e. What are the ways in which someone might "infringe" your copyright?

f. What remedies are available to you if they do?

g. Strictly speaking any unauthorized/unlicensed use of copyright material is a "copyright violation"; so when is it OK anyway? Why; what's the rationale for "fair use"? When, under what circumstances, for what purposes, and to what extent, is it possible to use/"steal" from someone's copyrighted work without being subject to penalties for a copyright violation? What's the difference between a "copyright violation" and "plagiarism"?

Hopefully this will make for an interesting and useful couple of sessions for you.

    a. What was the early (1920) broadcast industry ownership structure -- both in fact, and in terms of what Congress envisioned for the future?

    b. For a radical contrast, take a look at The Nation's ownership charts (The Nation's "Big Ten") -- it's a little different from the Big Ten we're thinking about on Saturday afternoons in the Fall. To see the full display of what each multi-media corporation owns, click on it. This is not this year's up-to-date description of who owns what, but it's adequate for our general, academic purposes. What do you see as possible public policy problems as a result of this media ownership structure?

    c. What are some of the other kinds of media ownership structures or patterns or collections you can imagine -- or observe -- that might also hold the potential for causing us concern about the impact of that ownership on media content?

    d. What are examples -- the range of categories -- of harm to the performance of the media that you have so far discovered? What others can you imagine?

    e. Of what relevance are the Tornillo and Red Lion cases in this context? Recall Chapter 4, Test Pattern for Living. Of what significance is that material in this context?

NOTE: This material is primarily intended for those students who are interested in specializing in intellectual property and communications law, who are willing to go above and beyond the minimum requirements for a course, or who just genuinely enjoy learning for its own sake. It is not a "required" assignment. All students are, however, strongly urged to read at least the following three paragraphs.

1. Foundation and Background.

One of the blessings of the study (and practice) of law is the opportunity it offers (actually requires) for you to learn about whole new bodies of knowledge, industries, and so forth. (In the instructor's case, the oil and gas industry; the airline, steel and cement industries; ports, shipping and ship building; and then broadcasting, cable, telephone, the Internet and so forth.)

And so here is the logic of the progression for this class: To understand the "law" of electronic media you need to understand something about electronic media. To understand electronic media you need to see it in the context of other media. To understand media, you need to know something of communication. To understand communication you need to know something about the operation of an animal's (including human's) sensory input, nervous system, and brain. And, to the extent that communication involves language, you need to know something of the relationship of language to "reality." All of this is relevant to many aspects of media and media law -- as well as many other areas of the law -- as we will see throughout the semester.

Moreover, given that the legal profession requires that you be engaged in nothing but communication (e.g., listening, speaking, reading and writing) -- that is, lawyers typically do not use physical tools (as do farmers, doctors or dentists), nor do we manufacture anything -- a study of communication would seem to be a rather fundamental essential for any specialty of the law, even if we were not focusing on communications law.

        a. The physiology of communication.

Someone has observed that humans are no more conscious of the mediated/verbal/symbolic environment in which they live than fish are conscious of the waters through which they swim. LEM is not a course in human physiology. But we need to pause for at least a moment to get some understanding of our interaction with our media environment. What is going on when our senses are stimulated? When words are created in our head? When we speak? Are we talking about what's going on "out there" or simply responding to something going on inside our heads? And, if so, what is it? Should we expect "understanding" to result from two-way communication between persons, or consider it an improbable miracle any time it occurs?

Begin by putting going to the Encyclopedia Britanica Web site, http://www.britannica.com/. (Full access to this site now requires a "membership." It used to be available, for free, through the UI Library. I will be checking to see if it is still available that way, though it appears not to be listed. Nonetheless, some material is still available from EB for free, and that is all to which I will be linking.)

(1) Put "human brain" in the search field and hit enter. On the page that takes you to, scroll down, look right, and click on the link to the 39-second video titled "Anatomy: Nerve Cells of the Brain." (If it's not there, try the "More Multimedia" link.)

Next, put "neuron" in the search field and hit enter. On the page that takes you to, scroll down, look right, and click on the link to the 1:59 video titled "Nervous System: Neurons."

 (2) Next, using the search box at the top of most pages, search for "hearing." That will bring up a one-paragraph brief article on "hearing or audition or sound reception" (one of the reasons for selecting it rather than other senses). Read it.

b. Animal communication.

Try searching for "annimal communication" -- although when I tried it wouldn't connect, so don't worry if you can't either.

Think of the parallels to human communication; e.g., How are human "functions of communication" and "modes of information transfer" similar to (or distinct from) those of other animals?

3. Human communication over distance: from "smoke, fire, drums, and reflected rays of the Sun" to the telegraph and beyond.

The needs, desires and opportunities of the military have driven a variety of technological advances over the centuries -- especially communications ("command and control").

We're now getting closer to "electronic media." But we see "electronic media" in a context that includes a variety of means of communicating over distance long prior to radio, television, and communication satellites.

    (a) Search, as above, on "telegraph." Read "telegraph -- electromagnetic communication device."

    (b) Search on "Marconi" and read the brief excerpt on Guglielmo Marconi -- on of the inventors of the "radio" (the technology used today by everything from cell phones to WiFi).

You may pull a number of insights from this material.

(1) Human life on earth did not suddenly go from 100,000 years of living in forests and hamlets of ignorance, devoid of desire or ability to communicate over distance, to the world of your lifetime: television, VCRs, computers, cell phones, and Blackberries. Humans, like other animal species, have always had the need and desire to communicate, and have been quite innovative in designing ways to do it.

(2) Much of what we might first assume are recent electronic inventions turn out to be older than we first imagine. There was an undersea Atlantic telegraph cable nearly 150 years ago; one of the first international organizations was the (still influential) International Telecommunications Union in Geneva.

(3) Why do you suppose "radio" was first called "wireless"? Was it immediately apparent what radio was; what its primary function would be by the 1920s? Are there modern day examples of technology that ends up being primarily used in ways not originally contemplated? What does that suggest regarding our role as lawyers with litigation, legislation and administrative regulation?

4. Human communication: the relationship between language, reality and the human nervous system

Read Wendell Johnson, "The Communication Process and General Semantic Principles," from Wilbur Schramm, Mass Communications (2d ed., Urbana: University of Illinois Press, 1975), pp. 301-315, available online at http://www.nicholasjohnson.org/wjohnson/wjcompro.html.

As you read, fashion some responses to the following questions:

Why does the author say "Mr. A talking to Mr. B" is an "awesome" event? What are the six stages he identifies in "Mr. A's" speech? How do his assertions relate to what we learned, above, about the physiology of human communication?

What does it mean to say that "what we verbalize is not . . . anything that can be called 'external reality'" [p. 304]? What is the significance (legal and otherwise) of that fact?

What is the difference in the vocabularies of entering college students and schizophrenics?

What does the author mean by "levels of abstraction"? What are some of the levels to which he refers?

What is the relevance of "to-me-ness" to "projection" [pp. 311-12]?

Do you agree that "two valued evaluation . . . is the formula of conflict" [pp. 312-13]? Can you think of any modern day examples that illustrate this assertion?