Syllabus

Law of the Press

Syllabus and Online Reading List
JRNL 3550
Fall 2009
Tuesdays and Fridays, 9:50 to 11:30 a.m.

Dan Kennedy
139 Holmes Hall
Office phone: (617) 373-5187
Cell phone: (978) 314-4721 (call any time)
E-mail: da {dot} kennedy {at} neu {dot} edu
Class Web site: lawofthepressfall09.wordpress.com
Office hours: Tuesdays and Wednesdays, 1:30 to 2:30 p.m.; Fridays, 8:30 to 9:30 a.m.

Overview

Video blogger Josh Wolf served 226 days in prison for refusing to cooperate with the investigation of a protest against globalization that he covered. The Boston Herald lost a $2 million libel judgment for its critical reporting on a Massachusetts trial judge. The Bush administration made it increasingly difficult for members of the public — including the press — to obtain information from government agencies. And the Obama administration, despite having won on a campaign promising greater openness, has proved reluctant to follow through on that pledge. Today a reporter — whether a paid professional or a citizen journalist — may feel as though she must walk through a legal minefield in order to inform the public.

The First Amendment to the U.S. Constitution states in part: “Congress shall make no law … abridging the freedom of speech, or of the press …” Yet, as the legal hazards to the news media continue to mount, freedom of the press becomes increasingly difficult to define. In addition, the courts have made it clear that the First Amendment is for all of us, and that the press does not enjoy any special protections and privileges that are not available to every citizen.

During the past century, the press has morphed into what today we call the media: newspapers, magazines, books, television and radio stations, movies, prerecorded music and the Internet. Applying the First Amendment — an 18th-century construct — to the 21st century requires us to understand principles that pertain not only to the most powerful media corporations but also to the anonymous blogger sitting alone in his apartment. Though the wording of the First Amendment is seemingly straightforward, media law encompasses a host of competing interests. Among the questions that will be considered in this course:

  • What restrictions may be placed on the media in order to provide a constitutionally guaranteed fair trial to a person accused of a notorious crime?
  • What right of access do the media have to court proceedings and to meetings of governmental bodies?
  • Does a journalist have a legal right to protect the identities of confidential sources?
  • Under what circumstances may a person who has been disparaged in the media successfully sue for libel?
  • Do individuals have privacy rights that trump those of the media to report on those people?
  • How do the copyright laws both protect and interfere with journalistic activities?
  • How have the Internet and other emerging technologies changed the laws that pertain to the media?

By the end of this class, you should not only be familiar with those areas of the law that affect the media, but also with the legal system in general.

Requirements for this class

There are two required texts for Law of the Press: Communications Law: Liberties, Restraints, and the Modern Media (Thomson Wadsworth, fifth edition), by John D. Zelezny, and an Online Reading List of supplemental materials that I have assembled. You will find this list below, as part of the syllabus.

I also strongly recommend a companion book to Communications Law that’s titled Cases in Communications Law: Liberties, Restraints, and the Modern Media (Thomson Wadsworth, fifth edition), edited by Zelezny. The book comprises edited versions of many of the court cases we will be reading. You can download the same cases for free using your university LexisNexis account or from an online service such as FindLaw.com. However, please be aware that you will have to do quite a bit more reading, since Zelezny has cut these cases down to their most important passages.

The two Zelezny books are available at the university bookstore.

School of Journalism attendance policy

Law of the Press is a large class, and your attendance and active participation are crucial. The School of Journalism requires that you attend at least 80 percent of all scheduled class meetings. If you miss 20 percent or more of scheduled classes, you will automatically fail. Every absence will have some effect on my assessment of your class participation, which will be factored into your final grade. Chronic tardiness may result in my marking you down for additional absences.

Special accommodations

If you have physical, psychiatric or learning disabilities that may require accommodations for this course, please meet with me after class or during conference hours to discuss what adaptations might be helpful to you. The Disability Resource Center, 20 Dodge Hall (x2675), can provide you with information and assistance. The university requires that you provide documentation of your disability to the DRC.

Assignments, deadlines and grades

  • Sept. 18: Quiz on American legal system (5 percent of final grade)
  • Oct. 9: Quiz on free press versus fair trial (5 percent)
  • Oct. 16: One-page memo on research paper
  • Oct. 30: Midterm (20 percent)
  • Nov. 13: Quiz on defamation (5 percent)
  • Nov. 20: Research paper (30 percent)
  • Dec. 1: Quiz on copyright (5 percent)
  • Finals week: Take-home exam (20 percent)

You will notice that these add up to just 90 percent. The remaining 10 percent will be based on your class participation, including attendance.

Semester schedule and reading list

We will try to stick to this schedule as closely as possible. However, we need to maintain some flexibility to accommodate guest speakers and special events.

Week 1: Sept. 11

  • Class topic: Course introduction

Week 2: Sept. 15 and 18

  • Class topic: The American legal system
  • This week’s reading: Communications Law, pp. 1-32; Coggin v. Texas, 2003 Tex. App. LEXIS 8678. (We’ll go over how to retrieve cases via LexisNexis.)
  • Note: On Friday, we will have a quiz on the American legal system.

Week 3: Sept. 22 and 25

  • Class topic: First Amendment theory
  • This week’s reading: Communications Law, pp. 33-80; Cases in Communications Law, pp. 1-6; Gitlow v. New York, 268 U.S. 652 (1925).

Week 4: Sept. 29 and Oct. 2

  • Class topic: Risks to public safety
  • This week’s reading: Communications Law, pp. 81-108; Cases in Communications Law, pp. 8-13 (Near v. Minnesota), pp. 40-48 (New York Times Co. v. United States); United States v. Progressive, 467 F. Supp. 990 (1979).

Week 5: Oct. 6 and 9

  • Class topic: Free press versus fair trial
  • This week’s reading: Communications Law, pp. 249-281; Cases in Communications Law, pp. 140-145 (Nebraska Press Association v. Stuart), pp. 145-151 (The People v. Bryant), pp. 151-154 (Press Enterprise Co. v. Superior Court of California), and pp. 154-158 (Chandler v. Florida).
  • Note: On Friday, we will have a quiz.

Week 6: Oct. 13 and 16

  • Class topic: Protecting sources
  • This week’s reading: Communications Law, pp. 281-295; Cases in Communications Law, pp. 158-164 (Branzburg v. Hayes), pp. 164-169 (In re: Grand Jury Subpoena, Judith Miller), pp. 169-171 (Cohen v. Cowles Media Co.); “Under Fire,” by Rachel Smolkin, American Journalism Review, February/March 2005; and “Josh Wolf: Video Blogger at the Center of Controversy over Journalists’ Rights,” by Kim Pearson, Online Journalism Review, Oct. 3, 2006.
  • Note: On Friday, your memo about your research-paper topic is due.

Week 7: Oct. 20 and 23

  • Class topic: Access to places and information
  • This week’s reading: Communications Law, pp. 214-248; Cases in Communications Law, pp. 127-129 (Houchins v. KQED), pp. 130-134 (U.S. Department of Justice v. Reporters Committee for Freedom of the Press); “Bush’s Secret Government,” by John Podesta, The American Prospect, Aug. 31, 2003; and “Under Cover,” by Dan Kennedy, Boston Phoenix, Feb. 18, 2005.

Week 8: Oct. 27 and 30

  • Class topic: Access to places and information, continued
  • Note: On Friday, we will have our midterm exam.

Week 9: Nov. 3 and 6

  • Class topic: Defamation
  • This week’s reading: Communications Law, pp. 109-148; Cases in Communications Law, pp. 66-68 (New York Times v. Sullivan), pp. 68-72 (Harte-Hanks Communications Inc. v. Connaughton), pp. 72-76 (Gertz v. Robert Welch); and five stories on the Boston Herald libel suit: “Murphy’s Law” and “Dump the Judge,” Feb. 13 and 14, 2002, the two Herald stories that were most at issue in the case (via LexisNexis); “Libel Suit Takes Aim at Print Reporter’s Words on TV,” by Alicia Mundy, Washington Post, Dec. 14, 2004; “Absence of Malice,” by Dan Kennedy, Boston Phoenix, Feb. 11, 2005; and “Judge Orders Herald to Pay $2.1M in Libel Case,” by Mark Jurkowitz and Ralph Ranalli, Boston Globe, Feb. 19, 2005.

Week 10: Nov. 10 and 13

Week 11: Nov. 17 and 20

  • Class topic: Invasion of privacy
  • This week’s reading: Communications Law, pp. 165-214; Cases in Communications Law, pp. 96-99 (Hoffman v. Capital Cities/ABC), pp. 99-101 (McNamara v. Freedom Newspapers), pp. 101-105 (Florida Star v. B.J.F.), pp. 105-110 (Diaz v. Oakland Tribune); pp. 124-127 (Miller v. National Broadcasting Co.), pp. 110-117 (Shulman v. Group W Productions), pp. 118-120 (Hustler v. Falwell), pp. 120-122 (Armstrong v. H&C Communications); and “Star Power,” by Drake Bennett, Boston Globe, June 4, 2006.
  • Note: On Friday, your research paper is due.

Week 12: Nov. 24

  • Class topic: Copyright
  • This week’s reading (all for Wednesday): Communications Law, pp. 296-350; Cases in Communications Law, pp. 174-179 (Elred v. Ashcroft), pp. 179-183 (Feist Publications v. Rural Telephone Service); pp. 186-191 (Harper & Row Publishers v. Nation Enterprises), pp. 191-195 (Campbell v. Acuff-Rose Music), pp. 196-202 (MGM Studios, et al. v. Grokster, et al.); and, from the Online Reading List, “Grok Around the Clock,” by Emily Bazelon, Slate, March 29, 2005; and “Justices Reinstate Suits on Internet File Sharing,” by Linda Greenhouse and Lorne Manly, New York Times, June 28, 2005. (If you are unable to access the New York Times story, register for a free account at NYTimes.com and then try it again. If that doesn’t work, please get it from LexisNexis.)
  • Note: We will not have class on Friday, Nov. 27, the day after Thanksgiving.

Week 13: Dec. 1 and 4

  • Class topic (Tuesday): Copyright, continued
  • Class topic (Friday): Obscenity and indecency
  • This week’s reading (for Tuesday): “Can Links Kill?”, by Dan Kennedy, The Guardian, Dec. 30, 2008; “Policing the Wild, Wild Web,” by Dan Kennedy, The Guardian, Jan. 27, 2009.
  • This week’s reading (for Wednesday): Communications Law, pp. 415-454; Cases in Communications Law, pp. 248-251 (Miller v. California), pp. 258-261 (FCC v. Pacifica Foundation), and pp. 261-267 (Ashcroft v. American Civil Liberties Union).
  • Note: On Tuesday, we will have a quiz on copyright.

Week 14: Dec. 8

  • Class topic: Government regulation of electronic media; class wrap-up
  • This week’s reading: Communications Law, pp. 351-414; Cases in Communications Law, pp. 210-213 (Red Lion Broadcasting Co. v. FCC).

Final exam

  • You will have a take-home final. Details will be announced well in advance of the due date.
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