[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 20060724. Revised 20060825, 20061201.

Links to discussion and resource material related to Copyright Law.

Links to discussion and resource material related to Open Meetings (and related statutes).

The trial exam (September 27) and sample student answer.

The LEM06 Final Exam instructions (only) -- to save you the time reading them while taking the exam (though they will, of course, be repeated on the hard copy exam itself).

"Final Exam: Pre-Exam Comments" was prepared last year for LEM05, but is fully applicable this year as well. It has links to other student answers with my commentary, and a significant amount of reference material written by others that you might find helpful if you suffer from exam anxiety.

Course Announcement and First Assignments (posted July 24, 2006)

General Information

Early Assignments

E-Mail Address

Personal Bio Writing Assignment

And see also: Course Announcement and First Assignments.

Coordinates: E-mail and other coordinates; Voice: 319-337-5555 (with 24-hour answering machine, where all voice messages should be left); Postal: Box 1876, Iowa City IA 52244-1876; Web page: http://www.nicholasjohnson.org; Blog: FromDC2Iowa.blogspot.com; Office: Room 445, Phone: 335-9146. Assistant:  Lisa Schomberg, Office: Room 405, Phone: 335-9091.

Your E-Mail: Please provide Mr. Johnson or Ms. Schomberg your preferred e-mail address immediately (either confirm that you use your default UI e-mail address, or give us the alternative you'd like us to use). This is the quickest and surest way to get class information to you. (If you are unable or unwilling to receive e-mail, let either of them know and other arrangements will be made.) Not incidentally, the very first reading assignment is on the Web and password protected, so you will need to submit your email immediately in order to be emailed the password and get access to the site.

Office Hours: Feel free to come by any time the office door is open. Regular office hours normally will be Monday, Tuesday and Friday, 10:00 to 2:00. No appointment is necessary, however, If for your convenience you'd prefer to make an appointment during those hours, or at any other more mutually convenient time, please do so.

Class Time and Place:  Class meets 14 weeks, Wednesday and Thursday afternoons, 1:50-3:20 p.m. (Wednesday) and 2:20-3:50 p.m. (Thursday), Room 225, beginning August 24 (except for Thanksgiving week; November 22 and 23) and ending Thursday, November 30.

Casebook:  Carter, Franklin and Wright, The First Amendment and the Fifth Estate (6th ed. 2003).

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.  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.) The primary, though not exclusive, focus of LEM06 is on the law of broadcasting and cable television.

Assignments:  See the reading assignment for August 23 and the personal bio assignment due August 29.

Deadlines: Although not a part of your academic grade, your professors and colleagues necessarily are evaluating you from day one regarding your professionalism. "Is this student someone I could recommend for a clerkship with a federal judge, or as a new associate in a quality law firm?" It is strongly recommended, if you have not already read it, that you read “So You Want to be a Lawyer: A Play in Four Acts,” available on the Web from http://www.nicholasjohnson.org. Among those professional qualities are the time management skills that enable you to produce quality work product before it is due, rather than at the last minute or after a deadline has passed.

Exams, Grades:  To provide the instructor and students with feedback and incentives, there may be (with advance notice) brief quizzes. 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.

Attendance:  You are urged to make the effort to be prepared for, attend, and participate in every class.  You probably already do that and can therefore ignore the rest of this paragraph. But for those more interested in minimums, the ABA, AALS and College of Law rules require students to be in "regular attendance."  For this course, "regular attendance" will be defined as 82 per cent of the class sessions (i.e., permitting five missed classes).  There are no "excused" or "unexcused" absences, just absences. You are, therefore, encouraged to save the permitted absences for any emergencies (e.g., funerals, weddings, fly backs or other work-related obligations, etc.) at the end of the semester. Participants attending less than the minimum may be dropped.

Reservation:  An effort will be made to provide advance notice of assignments and exams, respond to reasonable suggestions, and minimize changes.  But the instructor reserves the right to make changes believed to be of benefit to students.

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

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 be locked in a room for 14 weeks.

So, please hand in (to Ms. Schomberg or me) by August 29, 2006, a brief, one-page essay about yourself that can be shared in a "bio booklet" with other members of the class. 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 one 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, 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, or political campaigning, (8) future goals, expectations and plans for using your legal education, (9) electronics hobbies (e.g., amateur radio license, computers).

Deadlines. See above. As an example of the need to take personal responsibility for assignments that have group impact, your failure to get your bio in on time means the whole project must be postponed until you do.

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

NOTE: It is important that you read the following comments to give you a sense of what's coming and why.

    (a) How will the class this fall differ from past classes? Law of Electronic Media was formerly a two-credit-hour course that met one evening a week for a two- or even three-hour block. As a response to students' suggestions It is now a three-hour credit course that meets two afternoons a week for 1-1/2 hour each.

    (b) In further response to prior students' suggestions and requests, (1) new modules have been added, including additional video material. (2) Rather than submerge the instructor's role (as a former FCC commissioner) in creating much of the law involved in this course, there will be an increased use of his FCC opinions, legal and popular magazine articles. (3) Rather than indicate ahead of time precisely which pages in the casebook will be covered for each of 42 hours, and then compulsively plow through them, just know that the usual goal will be to cover about 15-25 pages per hour (20-35 per afternoon), more or less. Of course, when greater precision is possible it will be provided. (Know, however, that time spent reading ahead in these assignments won't be "wasted." Early reading simply gives you useful perspectives ahead of your classmates.)

    (c) Know also that we need not be compulsive; there is no "must cover" material in this course. Some, but very little, of it will be on a bar exam. Moreover, if we were to thoroughly cover the subject, 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 goal is simply to "demystify" these subjects for you sufficiently that, if you (or future clients) decide you need to get into it all 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.

    (d) There is an event that will (presumably) occur this semester only that will make it unique and hopefully more exciting and informative for you.

As you know, a common means of government regulation of business involves licensing. Most of you will someday be licensed by the state as lawyers. In the case of broadcasting, the relevant agency is called the Federal Communications Commission in Washington. It issues the licenses necessary to operate a station in the AM, FM, VHF or UHF bands (as well as other uses of radio). In the case of television, the licenses are for eight-year terms, and all the licenses for TV stations in a given state expire at the same time. As it happens, 2005 was the year in Iowa. October 1, 2005, was the date by which Iowa TV stations had to file for renewal of their licenses; citizen complaints, or requests for FCC hearings, had to be filed between then and the end of December. A group called Iowans for Better Local Television (IBLTV at www.ibltv.org), based in Iowa City, filed a "petition to deny" the license renewal of one of those local stations. Since the FCC has yet to respond to this Petition (as of July 24, 2006) we will be tracking this case as a way of breathing even more realism into our studies.

   (e) In part because of this semester's early emphasis on the FCC license renewal process, much of the introductory material from prior classes is not being assigned as such. It remains, however, no less useful in putting your study of intellectual property and broadcast regulation in context. If you have a genuine interest in communications law and policy you are encouraged (though not required) to read it. See below, Appendix A: Introductory Material from LEM04. Note that some of that material will be used this semester; but if and when it is it will be clearly indicated in the assignments immediately below.

   (f) If it was not assigned, or brought to your attention before, read the instructor's "So You Want to Be a Lawyer: A Play in Four Acts" (1998). There's more to becoming a successful professional lawyer than legal knowledge and analytical ability. (As Southwest Airlines puts it, "We hire for attitude and train for skills.") This easy read gives you some insight into what is going to be expected of you by the instructor for this class and, he believes, the lawyers with whom you will be working very soon.

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 its local "public access" video producers. We will need to explore enough of the historical and background of the media to understand the significance of the 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." The various interpretations of the First Amendment's protections will often weave their way in and out of our material. 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.

We could begin almost anywhere. I've chosen to begin this semester with defamation. We have a recent local case involving a student (not a law student) that may be of interest to you. And the defamation material offers us a reason to try to become a little more sophisticated in our use of language -- the only tool with which lawyers do their work.

But first . . .

I want to start off with a brief (actually just 54-second) item from the ABC Evening News of July 22, 2006, 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?

The first week we will explore some of these questions with some additional readings, and video excerpts in class. There is a separate memo, emailed to students, regarding this first week's discussion: "First Assignments," August 16, 2006.

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.

And, once again, we begin with an additional item, "Defamation: A Case Study," August 25, 2006, as a way to bring a specific set of facts, and breath of reality, into our exploration of the elements of defamation.

1. Defamation [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.

As an undergraduate, were you introduced to a study technique abbreviated "SQ3R"? Do you use it? If so, you'll find it useful with this material. (If not -- if someone will remind me, we'll take a show of hands  -- I'll review it briefly.)

Anyhow, 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 bringing 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.

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?

To be played in class:
Defamation: AbsenceMalice.mpg
Defamation: JCarsonDefamation198809nn.mpg
Defamation: TLewisNYTSullivan19870702.mpg

3. Broadcasting Regulation and the FCC

    a. Justifications for Broadcast Regulation. pp. 72-101

        (1) Why should anyone care about the role and impact of a nation's mass media? Is it "just entertainment," or as former FCC Chairman Mark Fowler once defined a TV set 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. (There is no "correct" answer, only well, and poorly, reasoned analyses. You will discover over time that I really do welcome, and reward, challenges to my own notions -- but I don't expect you to believe that until I've demonstrated it to you. Obviously, however, class discussion becomes more instructive, and entertaining, the more diversity of opinions we have.)

Read:

Read Noam Chomsky, Understanding Power (2002) [These excerpts (obviously written by Noam Chomsky, not Nicholas Johnson) 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), 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."]

In this connection, read "Forty Years of Wandering in the Wasteland" (2003). This law review article appears in the May 2003 issue of the Federal Communications Law Journal, 55 FCLJ 521 (2003). The issue is 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. Johnson reviews what has improved and 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.

David Hoffman, "Tune In To Democracy," The New York Times, March 13, 2004, discusses the system of mass media creation and regulation being proposed and installed in Iraq. That is reason enough to read the piece, since media is nothing if not global, and the more "comparative broadcast regulation" you can grasp the better. But in regard to our readings from the text, it is another way to come to understand what we are (and are not) doing to maximize the contribution to democracy of the mass media in our country.

Possible brief video clips from which some may be played in class:

ImpactMedia/MediaFndn: DadTalkToMe.mpg
ImpactMedia/MediaFndn: CathyAddicted.mpg
ImpactMedia/MediaFndn: YouAreWhatYouWatch.mpg
ImpactMedia/MediaFndn: JustSayNo.mpg
ImpactMedia/MediaFndn: EnvironmentalMessage.mpg

ImpactMedia: NChomskyMfgConsent1992.mpg
ImpactMedia: COsgoodTabloidTVCBSENews19981128.mpg
DailyShow: JSNetsNonCoverage200408nn.mpg
DailyShow: JSSharpton200408nn.mpg
DailyShow: JSSpin200408nn.mpg
DailyShow: JSMakeUpOwnMind200408nn.mpg

ImpactMedia: MillerProdPlace.mpg
ImpactMedia: UndercoverCBS6020040725.mpg

        (3) 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?

    b. Licensing. Your client cannot operate a broadcasting station without a "license" from the FCC. That means there's legal work for you to do obtaining the initial license, the license renewal, and transfer of licenses.
 

Read:

Casebook, pp. 102-167

Read:

Casebook, pp. 168-218

Nicholas Johnson, "A Fairness Doctrine Parable," as quoted in Brandywine-Main Line Radio, Inc. v. Federal Communications Commission, 473 F.2d 16, 41-42 (D.C. Cir. 1972).

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

• Why are there any governmental standards touching on the speech content of broadcasters anyhow? We'll address that with one of my favorite broadcasting opinions, Red Lion [p. 78]. Your position on many of these policy questions may come from your general political/ideological/economic orientation. For example,

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

• If you do, then it isn't that much of a stretch to conclude that broadcasters also have such obligations.
• If you don't, we then have the question as to 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.
• Even if there are such obligations, are "market forces" enough to guarantee they will be served? If so, or if not, why?
• And regardless of how we come out 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 consider Tornillo, p. 90, 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?

Read:

Casebook, pp. 219-292

To be played in class:
Obscenity: JJacksonABC20040211.mpg

3. Citizens' "Public Interest," Non-Profit Organizational Efforts at Media Reform

The material assigned, below, is a unit. The more of it you can read in one gulp the better, since it's all inter-related. So long as we find it compelling and challenging we'll stick with it. If it stops being fun, we'll move on to something else -- within limits.] Although I (and students) seem to find video clips useful in the educational process, I have been reluctant to use anything more than brief clips throughout the entirety of a law teaching career that began at UC Berkeley (Boalt Hall) in 1960. This semester will mark a break from that practice.

Mason Williams, Hollywood writer ("Smothers Brothers Comedy Hour") and composer ("Classical Gas") has said, "To be totally intelligent is to be half stupid. You have to feel half of it to see if it's worthwhile." We're not going to spend a lot of time trying to figure out what he meant by that. But my guess is that it's related to my belief that there are some areas of law you'll never fully understand if you can't "feel" what the case is really about. (One example we'll explore later is "defamation." Unless you can re-live what it felt like when you experienced your reputation being demolished from false charges you'll have a tough time understanding what your defamation plaintiff client wants you to do and why damages often come out as they do.)

And so it is with the impact of mass media, especially television, on those in the audience. The words in the FCC and court documents regarding the 1960s challenge by the Office of Communication, United Church of Christ, to the license renewal of WLBT-TV in Jackson, Mississippi, are livelier than those in most opinions. But to really breath life into them, for you to really feel with the Jackson audience, there's no substitute for the video representations of what life was like. This was something I lived through, as a law clerk to a judge on the U.S. Court of Appeals for the Fifth Circuit (then Texas through Florida) during 1958-59. It was something in which I would later play a role as FCC Commissioner in Washington (1966-73). For you, however, it is but "history," and largely ancient history at that, history that none of you have lived through and at least some of you may not have read.

So for our first week of classes, August 25 and 26, after introducing ourselves and briefly covering some administrative matters, we will first watch the video of an ABC "Turning Point" program from 1994: "Murder in Mississippi: The Price of Freedom."

Your reading for that week will be excerpts from a book about the WLBT case that arose at that time. Those excerpts are in a password-protected Web site; so you need to immediately get me your email in order that I can email to you the necessary password.

Once we've seered that time, and case, and its significance, into our consciousness we will want to ask ourselves what the modern day equivalents are in our day. How is the television industry, today, ill-serving its audience in ways somewhat analogous to their malfeasance and non-feasance in the 1960s? There may still be examples involving African-Americans. There are certainly examples involving other ethnic, racial and religious minorities. But think beyond that. What are other ways in which the mass media is failing to do what it could do to keep its audience informed regarding the most significant controversies and policy issues within its broadcast area and to otherwise serve "the public interest, convenience and necessity" (to borrow from the language in the 1934 Communications Act)?

    a. What are some examples of media reform organizations? What are/were their issues?

    b. What were their strategies and tactics? Which were the most effective?

    c. What was the impact of the WLBT case on citizens' groups legal standing?

    d. What do you believe to be the best legal balance between broadcaster responsibility/audience rights, on the one hand, and broadcasters' rights and freedom on the other? How have other nations resolved this question, both over time and now?

Read:

The material in the password protected site, mentioned above. Also:

"The History of Media Reform: Scanning the Horizon." [In Nicholas Johnson's remarks at the History of Media Reform Panel of the National Conference on Media Reform in Madison, Wisconsin, November 7, 2003, he offers a broad view of the sweep of what he contends should be considered as "media reform" efforts well beyond the work of the so-called public interest organizations of the 1960s and beyond.]

"Is 'The Commons' a Useful Framework?"  [Johnson was invited by The Boston Review to respond to David Bollier's "Reclaiming the Commons" in its summer 2002 issue. Johnson argues that the "commons" is useful concept, but may have been spread too thin by Bollier, that it's more useful when dealing with something like the Internet than when talking about the role of children in American society.]

So are we ever going to read any law? Yep. Starting now:

1. Office of Communication of United Church of Christ v. Federal Communications Commission, 359 F.2d 994 (D.C. Cir. 1996), is one of the major WLBT cases for you to read. It is available online in an html version (without headnotes) and a pdf version (reproducing the pages of the Federal Reporter 2d; with headnotes; you have to scroll down the first page a little to see where the opinion begins).

2. When the case came back to the FCC, Commissioners Cox and Johnson wrote a dissent to the FCC majority's granting of a license renewal to WLBT. In re Application of Lamar Life Broadcasting Co., 14 F.C.C.2d 431, 442 (1968). Read no less than their conclusion, "V. United Church of Christ Versus the Federal Communications Commission: A Landmark on the Road to Where?" (Use your Web browser's "Edit/Find" command to search on that heading.)

3. Subsequently, OC/UCC took it to the U.S. Court of Appeals, and this time the court was a little less tolerant. Read Office of Communication of the United Church of Christ v. Federal Communications Commission, 425 F.2d 543 (D.C. Cir. 1969).

Aren't we ever going to have assigned reading in that expensive casebook? I'm glad you asked me that question. Read Chapter 4 ("Broadcast Licensing"). B. ("Renewal of Licenses"), pp. 119-137.

And, at some point you probably ought to check out "Nicholas Johnson and Media Reform" at http://nicholasjohnson.org/writing/masmedia/. There's little point in trying to summarize here everything to which it provides links. Just go check it out.
 

September 7-8, 14-15, 2005

    a. What are the categories of ways in which media are "concentrated"?

Read:

1. The Media Barons and the Public Interest: An FCC Commissioner's Warning,"The Atlantic, June 1968. [This 1968 article, still maintained on The Atlantic' s Web page as a part of its "Flashbacks" series (as of September 5, 2005 -- where, however, you need an Atlantic subscription to see it), was the basis for Chapter Two of Nicholas Johnson's book, How to Talk Back to Your Television Set (1970).]

2. "Take This Media . . . Please!" The Nation, January 7, 2001 (only about one page). [These introductory remarks are for The Nation's special survey of American media ownership as of late 2000 -- to which links are provided. Although the ownership of the various media subsidiaries changes from month to month, pay special attention to The Nation's ownership charts 3. (The Nation's "Big Ten") because they remain fully adequate for general, academic purposes to demonstrate the continuing breadth, depth and interlocking of media conglomerates' control of the major conduits of mass media transmission to the American people.]

4. Brief excerpts from Ben H. Bagdikian, The New Media Monopoly (2004), available from the password-protected site.

5. pp. 684-706.

Additional material (not required reading):

"Media Concentration and Democracy." [This presentation to the Iowa City, Iowa, Unitarian-Universalist Church, August 10, 2003, deals with, among other things, the reasons for the First Amendment, early history of broadcasting regulation, and the multiple adverse consequences from global, multi-media, conglomerate corporate mergers]. And see generally the audio and transcripts from a number of interviews from around the time of the FCC's proposed media concentration proposals of June 2003. They are linked from "Recent Publications."

September 14 and 15, 2005

Read:

1. pp. 706-748

2. "Want Free Speech Rights? Go Buy a Station." In this June 23, 2003 (one page), Des Moines Register op ed column Johnson argues, "FCC and Congress' approval of media concentration is outrageous. But it's made multiples worse when only owners have First Amendment rights, they can censor, own content as well as distribution systems, combine multiple media within one firm, have few to no obligations to their communities and are not even limited by a watered down fairness docgtrine."]

3. "The Television Business" and "Caution! Television Watching May be Hazardous to Your Mental Health," chapters 3 and 4, pp. 32-53, from Test Pattern for Living.

4. For an example of U.S. government censorship read "His Master's Voice," The New Republic, October 14, 1972. And then consider . . .

5. "Public Channels & Private Censors," The Nation, March 23, 1970. [As the title suggests, this article addresses the techniques, quantity and seriousness of the "private censorship" by the media's owners. Note: This is a pdf file; since the article began at the bottom of a page you will need to scroll down the first page to where the text begins. Apologies for the dark copy near the end of the piece.]

6. For more on "censorship" see generally the Project Censored Web site, director Dr. Peter Phillips article in the forthcoming annual report, "Big Media Interlocks with Corporate America," and, as an illustration of the stories the organization highlights, #11 from last year, "The Media Can Legally Lie" (both are a mere 2- or 5-minute read).

List of possible video clips to be played in class:

ImpactMedia: RReaganMovieCBS6019851215.mpg
MediaConcentration: DixChixFlashpoints20030916.mpg
MediaConcentration: Minot20030916.mpg
MediaConcentration: MultiMediaFlashpoints20030916.mpg
MediaConcentration: ExcerptWagDog1997.mpg

    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 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 carriers 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?

6. Media Concentration [pp. 684-727 from Chapter XII]

    a. What are the categories of ways in which media are "concentrated"?

Read:

"The Media Barons and the Public Interest: An FCC Commissioner's Warning,"The Atlantic, June 1968. [This 1968 article, still maintained on The Atlantic' s Web page as a part of its "Flashbacks" series (as of February 18, 2004), was the basis for Chapter Two of Nicholas Johnson's book, How to Talk Back to Your Television Set (1970).]

"Take This Media . . . Please!" The Nation, January 7, 2001. [These introductory remarks are for The Nation's special survey of American media ownership as of late 2000 -- to which links are provided. Although the ownership of the various media subsidiaries changes from month to month, pay special attention to The Nation's ownership charts (The Nation's "Big Ten") because they remain fully adequate for general, academic purposes to demonstrate the continuing breadth, depth and interlocking of media conglomerates' control of the major conduits of mass media transmission to the American people.]

Additional material (not required reading):

"Media Concentration and Democracy." [This presentation to the Iowa City, Iowa, Unitarian-Universalist Church, August 10, 2003, deals with, among other things, the reasons for the First Amendment, early history of broadcasting regulation, and the multiple adverse consequences from global, multi-media, conglomerate corporate mergers]. And see generally the audio and transcripts from a number of interviews from around the time of the FCC's proposed media concentration proposals of June 2003. They are linked from "Recent Publications."

Read:

"Want Free Speech Rights? Go Buy a Station." [In this June 23, 2003, Des Moines Register op ed column Johnson argues, "FCC and Congress' approval of media concentration is outrageous. But it's made multiples worse when only owners have First Amendment rights, they can censor, own content as well as distribution systems, combine multiple media within one firm, have few to no obligations to their communities and are not even limited by a watered down fairness docgtrine."]

"The Television Business" and "Caution! Television Watching May be Hazardous to Your Mental Health," chapters 3 and 4, pp. 32-53, from Test Pattern for Living.

For an example of U.S. government censorship read "His Master's Voice," The New Republic, October 14, 1972. And then consider . . .

"Public Channels & Private Censors," The Nation, March 23, 1970. [As the title suggests, this article addresses the techniques, quantity and seriousness of the "private censorship" by the media's owners. Note: This is a pdf file; since the article began at the bottom of a page you will need to scroll down the first page to where the text begins. Apologies for the dark copy near the end of the piece.]

To be played in class:
MediaConcentration: DixChixFlashpoints20030916.mpg
MediaConcentration: Minot20030916.mpg
MediaConcentration: MultiMediaFlashpoints20030916.mpg
MediaConcentration: ExcerptWagDog1997.mpg

7. Privacy [Chapter XV]

    a. Intrusions (with and without consent). How far can a reporter go -- literally as well as figuratively?

    b. False Light and Public Disclosure of Private Facts. How do these causes of action differ from "defamation"?

In preparing yourself to comprehend and discuss this material, keep the following (illustrative, not exhaustive) additional 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 aunique set of new issues/problems, or are they merely extensions/applications of the old ones?
 
To be played in class:
Privacy: EMoriartyNoSecrets48Hrs199209nn.mpg
Privacy: EscelonCBS6020000227.mpg
Privacy: SpyOnAmericansNOW20040305.mpg

    a. Reporters' Access to Courts and Court Records.

Read:

"Constitutional Law--Criminal Law--Right of Public and Press to be Admitted to a Criminal Trial.--Kirstowsky v. Superior Court, 300 P.2d 163 (Cal. Dist. Ct. App. 1956)" [This was one of Johnson's earliest writings as a law student. (If you're curious as to others, see the "Articles, Law Review and Law Related" section in the "Contents, Introduction, Books and Articles" Web page of his Bibliography.)] Because of the online format of this casenote (jpg pictures of each page), you must click on each of its four pages separately. Netscape browsers (at least mine) brings it up in readable font size. Internet Explorer requires that you right click on the text and then on the "increase size" icon that will appear at the lower right corner of the jpg file. 35 Tex. L. Rev. 429, 430, 431 and 432 (1956).

Read James Bovard, "'Free-Speech Zone' : The administration quarantines dissent," American Conservative, December 15, 2003. [Governmental restrictions on the "free speech" of those who disagree with the government create problems for journalists as well as protesters. Although seemingly critical of the Bush Administration, the bi-partisan "balance" is provided by the source (the American Conservative) and the author's conclusion that the Administrations practices create "grave concerns to anyone worried about the First Amendment or about how a future liberal Democratic president such as Hillary Clinton might exploit the precedents that Bush is setting."]

9. Confidentiality [Chapter XVI]

    a. Journalists' Privilege? Why?

    b. Search Warrants Against the Media. Why not?

10. Copyright and Trademark [Chapter XIII]

Note: Only if we have time will we discuss copyright law as such. (a) The UI College of Law offers a semester-long course in copyright as a part of our "intellectual property law" curriculum that is very much worth taking if you are interested in specializing in this area of the law. (b) We have a lot to cover as it is. (c) Copyright, conceptually, stands apart from our other categories of "law of electronic media." It has a long common law and statutory history; on the other hand, it does involve 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.], and the relation of copyright law and regulation to the content of cable television, a subject we will cover [Chapter IX, A.].

    a. Purpose. What is the purpose of copyright; what would you designate as the "means" and the "ends" in the Constitution's reference to copyright?

    b. The Basic Elements. What can be copyright? By whom? What do you have to do to copyright something? What do you get once you own the copyright? How long does it last?

    b. Fair Use. What's the difference between a "copyright violation" and "plagiarism"? Strictly speaking any use of copyright material is a "copyright violation"; so when is it OK anyway? Why; what's the rationale for "fair use"?

    c. Music Licensing. Songs are copyright. So how do the owners calculate, and collect, what the radio stations owe them?

    d. Videotape Recording. Sony Corp. v. University City Studios.

    Read: "Is What's Black and White and Eldred All Over?"  [This is the text of a speech delivered to the Iowa Intellectual Property Law Association Annual Meeting in Amana, Iowa, October 25, 2002. It deals with, and reviews, copyright law generally, as well as comments about the Eldred decision in particular, and offers some proposals for reform. The 33 endnotes to sources contain links to the full text of many useful documents.]

Before beginning with copyright we may have a brief review of defamation. In that connection, and as a segue to copyright, read Howard Kurtz, "Woman Denies Affair With Kerry," Washington Post, February 17, 2004. Questions: (1) Does the woman have a cause of action for defamation? Against whom? Why or why not? Has the Washington Post adequately protected itself from suit with this story (remember: "the repetition of a libel is a libel"), or is it also a potential defendant? Can the media successfully defend that she is a "public figure"? Even assuming that they can, does that create a standard she can't meet in this case? Of what relevance is the Washington Post's initial response in this connection? (2) Does my posting this article to our Web site constitute a violation of the copyright law? Which statutory provisions are relevant? What possible arguments might you make on my behalf?

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. One evening's 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 this 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 give you some clue as to how to go about finding out what you don't know.

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 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. 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?

6. Finally, we have a number of cases in the text and notes, in addition to the lengthy (pp. 804-17) Harper & Row v. The Nation, to illustrate and test these statutory provisions that we will be discussing.

Hopefully this will make for an interesting and useful evening for you.

To be played in class:
Copyright: CopyDVDMusicABCENews20000309.mpg

1. Introduction, Foundation and Background.

This inquiry is new to LEM, something the instructor is trying for the first time. You may like it (in which case it will probably be used again in the future) or hate it (in which case it won't). There are at least a dozen identified "learning styles" of students. But a common, useful one is to begin the study of anything with the context, the whole, in which the subject being studied is but a small part.

Never fear; this will only involve the first class or two, it is not a reformulation of the entire semester, and it involves very little reading or time on your part.

One of the blessings of the study (and practice) of law is the opportunity it offers (or 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 other areas of) 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.

        1. 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 the following location (URL) in your browser:

http://www.law.uiowa.edu/library/refencyc.php

On the screen this brings up, click on "Encyclopedia Britannica Online (UI Access Only)" [if you are not gaining access via a UI computer you will need to enter your HawkID and password].

Once there, in the upper left search box put "Human Brain" (use the quotes) and put check marks (click on) in the boxes for "Encyclopedia Britannica" and "Video & Media."

That will bring up a screen with a list of articles in the left column and videos in the right.

    (a) There are 3 videos to look at (they will take you a combined time of about 2 minutes with a broadband connection):

• Anatomy: Nerve Cells of the Brain (00:39)

• Human Brain: Neurons (00:54)

• Human Brain: The Electrical Impulse (00:36)

    (b) Next, using the search box at the top of most pages (or going back to the original Encyclopedia Britannica Online screen) search "All Britannica Online" for "human nervous system." That will bring up a page with, as the first choice in the left hand column, an article titled "Functions of the human nervous system." Click on it, and then scroll nearly to the bottom of that screen (where you will be looking at an index of the contents of that article). About three major headings from the bottom you will see the word "Perception." Four lines under that you will see the word "Hearing." Click on it. The section on hearing is only three paragraphs long (which was one of the reasons for selecting it as our example, rather than material about other sensory perception).

This is simply an extension of (a), above. That is, a part of what is going on when we "communicate" is the receipt of sensory input, whether sight, sound, smell, taste, or touch. We don't need to study all of them, or understand the details. What we do need to understand is, once again, the miracle of the steps that, say, "music" passes through from the vibrations in our earphones (or speakers) to our sense of "enjoyment."

2. Animal communication.

We are, after all, just another animal species. And one that is, by the way, inferior, by any number of measures, to others. Other animals can run faster, jump higher, see farther, hear more, and survive environments that would quickly kill one of us. (For example, my cat thinks it not at all extraordinary to execute a standing high jump onto a narrow sink edge. No Olympic athlete could do the human equivalent -- even on steroids. And my cat is drug free.) As for communication, whales can navigate with underwater sounds from 800 miles away, bats with their own radar send-and-receive transmitters, birds with a sensitivity to the earth's magnetic forces. A little humility is called for on our part.

Search Encyclopedia Britannica Online, as above, on the term "animal communication" (use the quotes). When the screen appears, click on the second entry on the left side of the page, "the functions of communication." This is a rather long entry and you need not read more than what would be the first 6 pages if you printed it out. That's the material following the headings "The functions of communication," "Modes of Information Transfer," and "Sound" (the last selected to follow up on our selection of "Hearing," above).

As you read, 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

The needs, desires and opportunities of the military have driven a variety of technological advances over the centuries -- especially communications ("command and control"). With the next two readings we are getting closer to our "electronic media." But from these articles 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 Encyclopedia Britannica Online, as above, on the term "military communication." Select the first article in the left hand column on the screen that brings up; it's also called "military communication." On that page, from the contents/index at the bottom of the screen, click on and read "Introduction," "Early Development," and "The Advent of Electrical Signaling" (in total about 3 pages).

    (b) Search, as above, on "telegraph." Select the first entry, "telegraph," and click on it. Read up to (not through) the main heading "Advances in telegraph technology" (that's about 4 pages).

    (c) Now go back to the original Encyclopedia Britannica Online screen (http://www.search.eb.com/) (or, at the top of any page, use the drop down menu and select "Video & Media"), put a check in front of "Video & Media," and enter "telegraph" again. You will see a link to "Guglielmo Marconi: Inventor of the Wireless Telegraph (1:57)." Click on it and watch this brief story of the inventer of what was to become what we today call "radio" (the technology used 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 PDAs. 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 we will be discussing in class:

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?

b. Electrical Engineering. 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 it with flying colors and so will you.

But once we grasp the improbability of two humans ever understanding each other, 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.

Read:

(1) Casebook, pp. 42-63

(2) And this is the 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 be the basis for some class discussion. Make sure you read and are able to talk about 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." If you care about your future success and financial income, the entire memo is worth reading. We'll return to some other sub-sections later in the semester. But for purposes of class preparation those are the ones we'll emphasize at this point.

(3) This is also be a good time to dip into the first couple of pages (the section called "Shifting Sands in the Vast Wasteland," pp. 522-524 as published) from "Forty Years of Wandering in the Wasteland" (2003).

    c. 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.

Read:

(1) Casebook, pp. 11-34

(2) Read "An Autonomous Media." Although this paper was originally designed as a simple explanation of the First Amendment (among other things) for a group of former Soviet journalists and officials, it is a useful insight into the instructor's thinking, especially the section entitled "What are the values and consequences of the First Amendment?" -- a question that will be a central focus of our discussion.

To be played in class:

First Amendment: TLewisSedition19870702.mpg
First Amendment: HLB1stA.mpg
First Amendment: TLewisOrOfThePress19870702.mpg

    d. 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.

Read:

(1) Casebook, pp. 35-41

(2) And read/scan "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 wrote while an FCC commissioner. It appropriates a line from a Beatles' song lyric and then uses the entire Commission agenda from one meeting day to make 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. The point 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.

Do 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]. Read 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."

(If you have any interest at all in 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 30 years ago; some things about the FCC today are worse, and undoubtedly some are better.)