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First Assignments

Law of Electronic Media 2006

August 16, 2006


I've changed the beginning of the semester a bit.

As I've thought about it, it seems to me 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.

Moreover, I thought it only fair to give you some sense, up front, of what I've been thinking and writing about these issues over the past 40 years -- knowing that, if this class is like previous ones, virtually all of you will end up disagreeing with my positions.

While I don't care how you approach these issues ideologically, I do care that you see how crucially important the media is in our society, all the ways in which it affects every aspect of our lives -- our support of the war, our views of 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 elect, 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 really don't care how you come out on the remedies (though I do care that you have data, sources, and solid analytical presentations of your positions). My primary concern is that you approach the class with the realization that whatever law of electronic media we come up with is a matter of enormous significance in a variety of ways.

By putting my own views in writing, ahead of time, hopefully that will leave proportionately more class time for you to talk. I will be asking questions, listening to your discussion, and noting the references you make to items from this material in the course of presenting your positions.

I've also included some news items from the past couple of months, both because they are relevant to the issues, and also to make the point that the changes we are dealing with are going on around us "even as we speak."

I don't want to give it more than one or two class periods. So if you've read the other material it's certainly not time wasted; that's what we'll get to next.

But here are some of the questions I'd like you to think about, along with some assigned readings you can get off of the Web, and some of my present notions of videos we may watch and discuss in class. While there are a lot of individual items, many are just a page or two, and all are very light reading. (I will add some more video clips to this list -- but they are just shown in class, so nothing you need to "prepare" -- and possibly another couple newspaper stories. But this is clearly the bulk of it.)

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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? 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?

Read, Nicholas Johnson, "What is 'the press'?" August 9, 2006, http://fromdc2iowa.blogspot.com/2006/08/what-is-press.html

And, from our casebook, the blog-referenced and related, "5. 'Or of the Press," p. 34, and the discussion of Professor Jerome Barron's theory, and our authors' presentation of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), at p. 90.

Bloomberg News, "News Corp. to Start Selling Video Online," New York Times, August 15, 2006, http://www.nytimes.com/2006/08/15/business/media/15video.html

Alessandra Stanley, "The TV Watch: NBC’s Web-Only Episodes Offer ‘The Office,’ a Little at a Time," New York Times, July 18, 2006, http://www.nytimes.com/2006/07/18/arts/television/18watc.html?ex=1155960000&en=9d1262c1f4070a62&ei=5070

Saul Hansell, "Downloading Service to Allow Film Watching on TV Screens," New York Times, July 19, 2006, http://www.nytimes.com/2006/07/19/technology/19download.html?ex=1155960000&en=79afc00992884142&ei=5070

How do you think the drafters of the First Amendment thought about the role of the media in our new democracy? Why do the authors of our casebook use the expressions (in our book and another of theirs) "the Fourth Estate," or "the Fifth Estate"?

Consider the following questions from the syllabus [c. Regulation of Political Speech]:

* Do you believe that any corporation, in any industry, has any moral/ethical obligation (as distinguished from constitutional, legislative or regulatory requirements) 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?
As you saw from the very brief reference to the Tornillo case, above, 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?
Read Nicholas Johnson, "A Fairness Doctrine Parable," http://www.uiowa.edu/~cyberlaw/writing/parable.html
Can you imagine conflicts of interest this might create?
Read Nicholas Johnson, "FCC: Conflicts of Interest Serve Public Interest," June 27, 2006,
http://fromdc2iowa.blogspot.com/2006/06/fcc-conflicts-of-interest-serve-public.html
Are you at all troubled by the interlocking of the media's content with its commercial interests and advertising (e.g., "product placement")?
Read Nicholas Johnson, "Taking One Step Beyond," Broadcasting & Cable, May 22, 2006 (brief comments as part of panel), http://www.nicholasjohnson.org/writing/masmedia/njbc0522.html

Read Nicholas Johnson, "Mr. Editor, tear down this wall!" August 8, 2006, http://fromdc2iowa.blogspot.com/2006/08/mr-editor-tear-down-this-wall.html

Video of exchange between Edward R. Murrow and CBS president Bill Paley.

Sara Ivry, "Marketers Say They Pay for Play in News Media," New York Times, June 26, 2006, http://www.nytimes.com/2006/06/26/business/media/26message.html?ex=1155960000&en=cb244c4432e3523c&ei=5070

Stuart Elliott, "A Column on (Your Product Here) Placement," New York Times, August 16, 2006, http://www.nytimes.com/2006/08/16/business/media/16adco.html

Do you believe that you are influenced in your buying decisions by advertising?
Read the section headed "Manipulation Through Advertising," which is linked from the first page of Nicholas Johnson, "Media as Politics: What's a Voter to Do?" http://www.nicholasjohnson.org/writing/masmedia/earlham.html

and, from the book, Nicholas Johnson, Test Pattern for Living (New York: Bantam Books, 1972), http://www.uiowa.edu/~cyberlaw/tpfl/, click on the link to, and read, Chapter 4, "Caution! Television May be Hazardous to Your Mental Health." On the assumption you did not live through the late 1960s and early 1970s, this is an example of what passed for thought at that time. (It's also what passed for innovative format: quotes on the left hand pages, text on the right. The introduction, by Mason Williams ("Classical Gas") is sheet music.) In spite of the fact this material is almost 35 years old, and however embarrassing it may be to let you know, today, that I once put my name on such a thing, there's enough in it that still seems applicable that I thought it worth assigning. At a minimum it will give you a clue as to why, as an FCC commissioner, I was not all that popular with broadcasting executives.

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?
Read, from Nicholas Johnson, "Forty Years of Wandering in the Wasteland," a pdf file, "The Obligations, and Limits, of Capitalism," pp. 525-528, and "Adequacy of American Journalism," pp. 532-533, available online at http://www.law.indiana.edu/fclj/pubs/v55/no3/Johnson.pdf. [This law review article appeared in the May 2003 issue of the Federal Communications Law Journal, 55 FCLJ 521 (2003). The issue was a commemoration of the 40th anniversary of former FCC Chairman Newton Minow's famous "vast wasteland" speech, and contains articles by a number of leading figures in the field. This article reviews from my perspective what's improved, and what's become worse, in broadcasting during the past near-half century, offers one person's view of why we should care, and some proposals for reform for the FCC and Congress.]

Read Noam Chomsky, Understanding Power (2002), http://www.uiowa.edu/~cyberlaw/lem02/chomsky1.html. [These excerpts (obviously written by Noam Chomsky, not me) 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."]

We will at this point in our discussions also watch a 7-minute video of Chomsky's presentation of his thesis.

Read, from Nicholas Johnson, "Media as Politics: What's a Voter to Do?" http://www.nicholasjohnson.org/writing/masmedia/earlham.html, the sections (accessible with links from the first page) "The Problem With the Media," "Efforts to Discourage Voting," "Commission on Presidential Debates," "Ignorance as a Political Tool," and "Manipulation Through Political Propaganda."

Read Nicholas Johnson, "Political Contributions, Speech and Bribes," July 5, 2006, http://fromdc2iowa.blogspot.com/2006/07/political-contributions-speech-and.html, and the newspaper column to which it refers, Nicholas Johnson, "Line Blurs Between Campaign Contributions, Bribes," Des Moines Register, July 5, 2006, http://www.nicholasjohnson.org/politics/general/njdr0705.html

Read Nicholas Johnson, "Et tu NPR?" August 10, 2006, http://fromdc2iowa.blogspot.com/2006/08/et-tu-npr.html

Video: Jon Stewart on "Crossfire," "You are hurting us."
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?