Professor Jacob             
                                                     Spring 1999
                                                         Tuesdays, 1-3 PM

Initial Syllabus

    This class investigates the law of reporters, photographers and cameramen, and the ancillary professions and business structures that both support them and are supported by them.  That law is a maze, as is the enterprise it relates to.  We rely on a theme to help us guide ourselves through the maze, we are chiefly interested in this law and these matters as they are affected by the First Amendment.

    The results of this interaction of professional needs, law, and the First Amendment as a very special kind of law are sometimes quite surprising; sometimes, hard to understand or hard to justify.  At the same time, they are almost all interesting.  And the profession/industry/craft which underlies law, and to which we give continuous attention, is one which all us always find interesting, although some of find it interesting in one way and others, in another.

    I hope this is a class in which all the students will get out (at least as far as the library and the internet, if no further) and do some investigating and, if worth it, investigative reporting.  Although the numbers registered in this yearâs class preclude separate formal presentations for individual students, there will be time to bend the discussion to points on which particular students have special information.

    The casebook is MARC A. FRANKLIN & DAVID A. ANDREWS, MASS MEDIA LAW: CASES AND MATERIALS (5th ed.1995 with 1998 Supplement).   It is pretty good and will repay our study.  It is also too long to go entirely through in a 2 hour course; that would require us to cover over 70 pages in each two hour class.  Therefore, a certain amount of triage will be necessary.

    To help me justify how I am going to cut and mix and match in the casebook, let me begin, first, by pointing out a fundamental irony about the media in the United States.   Newspapers and print journalism generally operate without any but the most minimal controls as to content (and certainly with no controls that might be characterized as ãprior restraintä).  Moreover, print journalism lays undisputed claim to immunities from many broad-based laws that affect other businesses, such as the anti-trust laws where newspapers have a special statutory exemption.

    In contrast, the broadcast media began and have continued subject to to a regime of extremely close regulation.  And cable, which began as parasitic on broadcast TV, has to a large extent been dragged along and operates in a regulated mode also.   The power of the FCC over broadcast and cable media is more akin to the control that a Public Service Commission has over public utilities like electric and gas companies.  The relevant law  -- The Telecommunications Act of 1996  -- trumpeted the beginning of deregulation for all media, but it still provides for substantial supervision of business structure, at least on an interim basis, and a degree of control over programming and content that would be unthinkable with respect to print journalism and publishing.

    That tunnel vision is continued in the casebook, where chapters 2 and 3 talk about business matters in print journalism, while chapters 11, 12 and 13 attempt to keep up with broadcast, cable and other media including the internet and upcoming problems of convergence.  The legal problems of U.S. policy toward the non-print media really requires a separate course for fair treatment, and from time to time this law school has provided for such a course.  At most we can hope only to make the most general sketch of these matters within a Media and the First Amendment course, with a recommendation that the subjects be further pursued.

    And that is what we will do.  Instead of trying to survey print and non-print media policies and business structures, we will focus on two headings covering a number of topics that, by and large, present the same problems to all the media and to the journalists who make up the backbone of the media.  These can be generally described as follows:

A. One heading will be the rights to find the news, that is, Newsgathering (Part IV).  This will break apart into Reporterâs Privileges (Chapter 8) and Reporterâs Access to Events (Chapters 9 & 10).

B. The second heading consists of a description of those constraints that the law puts on what the media can print, say or show.  And this, too, breaks apart into two topics.  The first topic that requires treatment here is the structure of permissible limits on the content of what is printed.  Here we begin the rule against ãprior restraintsä (Chapter 1) and then move on to considerations liability for defamation (Chapter 4), invasions of privacy and intentional infliction of mental harm (Chapter 5), and -- to a much more limited degree  -- violation of intellectual property rights (Chapter 7).  The second topic under this heading is also concerned with limits on the press, but here the concern is not with what is said, but with how the information is gathered and distributed. This is treated in
Chapter 6.

    Accordingly, we will begin with just a few pages in Chapter 1, pp. 56-63, on ãIs the Press Different?ä  Then we will turn to Chapter 8 and the Branzburg case and work our way through to Chapter 10.

    Once we are finished the first group of topics, we will turn in week 5 or 6 to the longer second half.  We will begin with Chapter 6, Liability for Physical and Economic Harm, since the problems of the ethics of investigative journalism and the non-ethics of the paparazzi are usually connected with newsgathering.  Then we will read the concentrated material on the principle of no prior restraint in Chapter 1, pp. 78-107 and so much of Chapters 4, 5 and 7 as we can get done.

    This will constitute our class-room track.  For those of you who are going to do papers in this course, there are additional matters to consider- Please consult the Additional Syllabus