COMM 5300 MASS COMMUNICATION LAW Fall 2012, M-W, 9:40-11:35, LNCO 1100

Dr. David J. Vergobbi LNCO 2866, 801-581-3294 [email protected] Do NOT use Canvass/WebCT e-mail. Office Hours: Monday/Wednesday 3:15-4:15, or by appointment. TEXT: Mass Media Law by Don R. Pember & Clay Calvert, 18th ed., McGraw-Hill. OBJECTIVE: This course provides a practical knowledge of the basic laws and regulations governing anyone involved in mass communication. We study historic and current developments in regulatory, statutory, and judicial law to understand the legal, philosophical, and political issues/reasoning that define mass communication law. A student’s ability to assimilate and apply this information is determined by: 1) class preparation, 2) class participation, and 3) successful completion of four exams. ACCOMMODATIONS POLICY: I make no content accommodations for this class. ORGANIZATION: See the following schedule. This course is discussion-based and pivots upon critical and analytical thinking. I supply a list of landmark cases for each chapter, which you will outline for class discussion. I expect each class member to have read all the designated readings and to have prepared answers on all the assigned cases and problems, for preparation and participation are essential to the class discussion format. We learn through our discussion. To stimulate discussion and assure participation, I call upon students regularly and at random to describe and interpret assigned material. This class, however, is an open discussion, which means I expect you to initiate the debate. ATTENDANCE and TARDINESS: As per university standards, I expect regular attendance at all class meetings. By registering for this class you have thus contracted to be here, and I expect you to accept and fulfill that responsibility. If you’re not in class, you can’t participate, and participation is a major grade factor. I will take roll. To demonstrate how serious I view attendance and how important I believe in-class learning is—and to motivate you—attendance is equivalent to exams and participation. You earn these points: six points for each class attended. However, miss five classes (2.5 weeks) and you fail the course. Make no mistake. I’m not rewarding seat time. I respect students who take seriously their responsibility, so I reward the intellectual engagement necessary to complete this course. If you cannot attend every session well prepared, drop the class.

COMM 5300 – LAW______________DR. VERGOBBI_______________FALL 2012 ATTENDANCE and TARDINESS (cont.): I do not tolerate tardiness. Late arrivals are disruptive and, simply, impolite. I arrive at class ten minutes early to take roll. I will begin class precisely at 9:40. Be present by then to make the roll and earn your points. Documented death, family tragedy, and medical conditions can excuse an absence. Do not talk to me about employment. If you registered for the class, I assume you have made arrangements to be here, and I expect you to be present. University Attendance Policy (Student Handbook, U of U Home Page): “The University expects regular attendance at all class meetings. You are not automatically dropped from your classes if you do not attend. You must officially drop your classes by the published deadline to avoid a “W” on your record. “You are responsible for satisfying the entire range of academic objectives, requirements and prerequisites as defined by the instructor. If you miss the first 2 class meetings, or if you have not taken the appropriate requisites, you may be required to withdraw from the course. “If you are absent from class to participate in officially sanctioned University activities (e.g. band, debate, student government, intercollegiate athletics), religious obligations, or with instructor’s approval, you will be permitted to make up both assignments and examinations.” Vergobbi’s Attendance Statement: CONTACT ME IMMEDIATELY if you “participate in officially sanctioned University activities.” You have the responsibility to inform me of your status and provide the proper documentation to “be permitted to make up both assignments and examinations.” This permission does not operate after-the-fact. Talk to me now. This concerns any other anticipated and legitimate absences. Again, talk to me now. YES, I’m a hardcase concerning attendance—for your benefit. Attendance is vital to understand the material. But get here and, believe it or not, we’ll have an enjoyable time in this class. For, you see, I’m a delightful hardcase. CLASS PARTICIPATION: I expect you to come to class prepared. When evaluating your in-class participation, I’ll consider such factors as physical presence, evident knowledge of and preparation for the material being discussed, willingness and eagerness to participate, willingness to allow others to participate, quality of contributions (e.g., insight versus summary, irrelevant sarcasm versus constructive critical sarcasm), general promptness and respect for one another. “Participation” involves class discussion, small group problems, and various assignments/activities.

COMM 5300 – LAW_____________DR. VERGOBBI_____________ __FALL 2012 CLASS PARTICIPATION (cont.): Yes, this is a subjective category. But after sixteen weeks together, I understand each of your personalities and assess accordingly. What I look for is EFFORT. Regardless of your personality, I can see whether or not you are making an effort to prepare for class and to engage in the class. Talk with me at any time during the semester if you are concerned with your participation. EXAMS: The four exams test student knowledge and understanding of mass communi-cation law and how it relates and applies to the media. The exams cover only their designated chapters. Exams One and Three are fully individual. During the first hour of exams Two and Four students will individually answer multiple-choice, true/false, short-answer essay questions. During the second hour of exams Two and Four randomly assigned student groups of three will answer the case problem as teams. GRADUATE STUDENT CREDIT: Students taking this course for graduate credit will meet a higher level of requirements. See the additional page. ADA STATEMENT: The Americans with Disabilities Act requires that reasonable accommodations be provided for students with physical, sensory, cognitive, systemic, learning, and psychiatric disabilities. Please contact the instructor of this course at the beginning of the semester to discuss any such accommodations for this course. The University of Utah seeks to provide equal access to its programs, services and activities for people with disabilities. If you will need accommodations in the class, reasonable prior notice needs to be given to the Center for Disability Services, 162 Olpin Union Building, 581-5020 (V/TDD). CDS will work with you and the instructor to make arrangements for accommodations. All written information in this course can be made available in alternative format with prior notification to the Center for Disability Services. GRADING:

Attendance…………………………… ..oh, a bit over 130 pts. (16.6%) Participation…………………………………..right at 130 pts. (16.6%) Exam one……………………………...approximately 130 pts. (16.6%) Exam two…………………………………….…about 130 pts. (16.6%) Exam three…………………………………….around 130 pts. (16.6%) Exam four………………………………….ah, maybe 130 pts. (16.6%) let’s say 780 pts. (100 %)

Other random opportunities for extra points will appear throughout the semester during class sessions, including on-time points. Be here, be prepared, and you’ll reward yourself. I calculate final course grades by a curve based upon the highest student score. TWO STRATEGIES FOR SUCCESS: Your best strategy is to have your chapters/cases prepared for each day’s discussion. Keep up and you’ll do fine. A second strategy is to start a study group, now. Discussing the issues and challenging each other with application of the material will stimulate your understanding and recall of this detailed information. Experience shows that four-member groups work best.

COMM 5300—LAW _______________DR. VERGOBBI_____________FALL 2012 PREREQUISITE AFFIDAVIT: You must be prepared to take this course, thus the reason for prerequisites. The prereq for COMM 5300 is COMM 1500/3505. If you have not taken COMM 1500/3505, drop 5300. You cannot take 1500/3505 simultaneously with 5300.

Sign and return this page to Dr. Vergobbi by the second class session.

By signing this affidavit, I declare that I have passed the prerequisite for this course, COMM 1500/3505, or its equivalent, in _________________(semester), ________ (year) at _________________________ (school). I understand that should my statement prove to be false, I will receive an immediate E for this course.

___________________________________________ (Print name) ___________________________________________ (Signature) (U ID#)

______________________ (Date)

COMM 5300: SCHEDULE________ _DR. VERGOBBI____________ FALL 2012 Schedule is flexible to change. WEEK ONE: Aug. 20, Orientation and Acquaintance. We will use the entire session. Aug. 22, U.S. Legal System, Chps. 1, 2. Case list below in course syllabus.

WEEK TWO: Aug. 27, Conceptualizing Free Expression, Chps. 2,3. Case lists in syllabus. Aug. 29, The First Amendment

WEEK THREE: Sept. 3, No Class, Labor Day Sept. 5, The First Amendment

WEEK FOUR: Sept. 10, Diversity, Tolerance, and the First Amendment Sept. 12. Diversity, Tolerance, and the First Amendment

WEEK FIVE: Sept. 17, EXAM ONE Sept. 19, Libel, Chps. 4, 5, 6. Case lists in syllabus.

WEEK SIX: Sept. 24, Libel Sept. 26, Libel

WEEK SEVEN: Oct.1, Privacy, Chps. 7, 8. Case lists in syllabus. Oct.3. Privacy

FALL BREAK, October 8-12

WEEK EIGHT: Oct. 15, Privacy Oct. 17, EXAM TWO

COMM 5300: SCHEDULE___________DR. VERGOBBI_____________FALL 2012

WEEK NINE: Oct. 22, Gathering Information, Chp. 9. Case list in syllabus. Oct. 24, Gathering Information

WEEK TEN: Oct.29, Protection of Sources, Chp. 10. Case list in syllabus. Oct. 31, Protection of Sources/Contempt and 1st v. 6th, Chps. 11, 12. Case lists in syllabus.

WEEK ELEVEN: Nov. 5, 1st v.6th, Chps. 11, 12 Nov. 7, 1st v. 6th

WEEK TWELVE: Nov. 12, EXAM THREE Nov. 14, Advertising, Chp. 15. Case list in syllabus.

WEEK THIRTEEN: Nov. 19, Advertising, an extravaganza worth points. Attention: Special exam information. Nov. 21, No class. Thanksgiving gift. So do not miss Monday.

WEEK FOURTEEN: Nov. 26, Copyright, Chp. 14. Case list in syllabus. Nov. 28, Copyright

WEEK FIFTEEN: Dec. 3, Telecommunications, Chp. 16. Case list in syllabus. Dec. 5, Telecommunications

WEEK SIXTEEN: Dec.11, EXAM FOUR, Tuesday, 8:00-10:00 a.m., in this room.

COMM 6300_--_LAW____________DR. VERGOBBI______________ _FALL 2012 GRADUATE STUDENT REQUIREMENTS

ATTENDANCE/PARTICIPATION: Same as undergraduate requirements. REQUIREMENT ONE: Complete written exam one covering First Amendment law. REQUIREMENT TWO: Complete written exam two covering libel and privacy law. REQUIREMENT THREE: You will select the area of mass media law most interesting to you and lead discussion/lecture for one class session. How you conduct the class is up to you. You will first identify the area and your presentation style in a proposal. We will then meet, discuss, and schedule your discussion/lecture. REQUIREMENT FOUR: Here’s an opportunity for a first-draft convention paper. Take advantage of it. Work on the research paper must reflect an understanding of legal research skills commensurate with graduate level performance. Specifically, this means a paper that will reach 25-40 pages. The paper must: 1. reflect the use of primary legal sources, as explained in class; 2. note and analyze court opinions on cases used; 3. demonstrate use of secondary legal sources such as analyses in law journals or reviews, legal treatises, government documents, or use of recognized authorities. The paper must reflect scholarly approaches to the subject, leaving opinion and interpretation for the conclusion/implication section at the end of the paper. The paper must also reflect a high degree of scholarship in style, structure, and handling of subject matter. Remember, you must first present a prospectus for my approval before proceeding with the paper, so I can help you work out your subject and method. Start planning your paper today. You need every week of this semester to develop your work. Talk with me at any time. I’ll discuss research papers as the class proceeds. GRADING: Attendance……………………………………………..130 pts. Participation……………………………………………130 pts. Lecture/Discussion…………………………………….130 pts. Exam one………………………………………………130 pts. Exam two………………………………………………130 pts. Research paper…………………………………………260 pts. 910 pts.

THE SIX PRINCIPLES OF FREE SPEECH [Existent Constitutional case law as compiled by Rodney Smolla.] 1. NEUTRALITY PRINCIPLE: Speech cannot be abridged simply because it is unpopular, or goes against governmental desires. R.A.V. v. St. Paul hate speech case, e.g. 2. EMOTION PRINCIPLE: Speech cannot be abridged because it is passionate or goes beyond the bounds of civility. Cohen v. California “Fuck the Draft” case, e.g. 3. SYMBOLISM PRINCIPLE: Protected speech is not limited to the written or spoken word. Texas v. Johnson flag-burning case, e.g. 4. HARMS PRINCIPLE: In some cases, speech can be penalized if it causes harm. a. Physical Harms: i. Injuries to persons: e.g., solicitation of murder, incite to riot ii. Injuries to property: e.g., solicitation of arson, incite to destroy property b. Relational Harms: i. Injuries to social relationships: e.g., libel, slander, alienation of affections ii. Injuries to business relationships: e.g., libel, fraud, false advertising, insider trading iii. Injuries to ownership interests: e.g., copyright, use of name for commercial purposes (privacy appropriation) iv. Injuries to confidentiality: e.g., disclosure of national security secrets, revelation of private information c. Reactive Harms: i. Injuries to individual tranquility: e.g., infliction of emotional distress, invasion of privacy by placing the individual in a false light in the public eye, intellectual disagreement with the content of speech ii. Injuries to communal sensibilities: e.g., insults to human dignity, racist or sexist speech, vulgarity, obscenity, interference with political or social harmony iii. Note: Reactive harms alone are not enough to abridge speech. 5. CAUSATION PRINCIPLE: To abridge speech, the plaintiff must prove a direct causal nexus exists between speech and action. I.e., the Brandenburg v.Ohio incitement test: Prove intent, imminence, likelihood of speech did cause a lawless action/harm. The court’s language is: Prove the speech “is directed (intended) to inciting or producing imminent lawless action and is likely to incite or produce such action.” 6. PRECISION PRINCIPLE: Abridged speech must be meticulously defined. Used to assess constitutionality of statutory and regulatory law. But precision of case reasoning can also be assessed when deciding whether to overrule an existing precedent. U.S. v. Stevens overbreadth doctrine case, e.g.

COMM 5300 -- LEGAL CASE BRIEF_____________________________________ CASE NAME: CITATION/DATE: LEVEL OF COURT: FACTS:

PLAINTIFF ARGUMENT:

DEFENDANT ARGUMENT:

COURT’S DECISION AND REASONING:

DISSENT:

PRECEDENT/POINT OF LAW/ANALYSIS:

FREEDOM OF EXPRESSION CASES Chapter 1 U.S. v. Stevens (2010) Chapter 2 Schenck v. U.S. (1919) Gitlow v. New York (1925) Whitney v. California (1927) Dennis v. U.S. (1951) U.S. v. Rosen (2006) Yates v. U.S. (1957) Brandenburg v. Ohio (1969) To help understand Brandenburg see: James v. Meow Media Inc. (2002); Rice v. Paladin Ent. Inc. (1996/97); Brown v. Entertainment Merchants Assoc. (2011); Planned Parenthood at Columbia/Williamette, Inc. v. American Coalition of Life Activists (2001 and 2002). Near v. Minnesota (1931) Bank Julius Baer & Co. Ltd. v. WikiLeaks (2008) New York Times Co. v. U.S. (1971) U.S. v. Bell (2005) Chapter 3 Flynt v. Rumsfeld (2004) El-Masri v. Tenet (2006)/El-Masri v. U.S. (2007) Tinker v. Des Moines School District (1969) To help with Tinker see: Barber v. Dearborn Public Schools (2003) Hazelwood School District v. Kuhlmeier (1988) To help with Hazelwood see: Dean v. Utica Community Schools (2004) Compare: Kincaid v. Gibson (2001) with Hosty v. Carter (2005) Bowman v. White (2006) Nieto v. Flatau (2010) Chaplinsky v. New Hampshire (1942)/Gooding v. Wilson (1972) Cruff v. H.K. (2010) R.A.V. v. St. Paul, Minnesota (1992)/Virginia v. Black (2003)—“true threats” [See text pp. 130-133] Citizens United v. Federal Elections Commission (2010) Comcast v. F.C.C. (2010) LIBEL CASES Chapter 4 Hornby v. Hunter (1964) Doe v. MySpace Inc. (2008) Geisler v. Petrocelli (1980) Budget Termite & Pest Control v. Bousquet (2002) Howell v. Enterprise Publishing Co. (2008) Jones v. Palmer Communication (1989) Fleckstein v. Friedman (1934) [LIBEL chapters/cases continued next page.]

LIBEL – Chapter 5 New York Times v. Sullivan (1964) Gertz v. Welch (1974) Rosenblatt v. Baer (1966) Time, Inc. v. Firestone (1976) Wolston v. Reader’s Digest (1979) Hutchinson v. Proxmire (1979) Compare: Zupnick v. Associated Press (‘98) and Krauss v. Globe International Inc. (‘98) Metts v. Mims (2009) [ Curtis Publishing Co. v. Butts/A.P. v. Walker (1967) Falwell v. Flynt (1986)/Hustler Magazine v. Falwell (1988) LIBEL – Chapter 6 Anderson v. Liberty Lobby 1986) Edwards v. National Audubon Society (1977) Maxon v. Ottawa Publishing Co. (2010) Milkovich v. Lorain Journal Co. (1991) Ollman v. Evans (1984) Immuno, A.G. v. Moor-Jankowski (1991) Arthur v. Offit (2010) PRIVACY CASES Chapter 7 Roberson v. Rochester Folding Box Co. (1902) White v. Samsung Electronics America, Inc. (1992) Cardtoons v. Major League Baseball Players Assoc. (1996) Messenger v. Gruner + Jahr Printing and Publishing (2000) Preston v. Martin Bregman Productions, Inc. (1991) Booth v. Curtis Publishing Co. (1962) U.S. v. Charbonneau (1997) [page 278] Sanders v. ABC, Inc. (1999) Deteresa v. American Broadcasting Co., Inc. (1997) Dietemann v. Time, Inc. (1971) Desnick v. Capital Cities/ABC, Inc. (1994)/Desnick v. ABC (1995) Bartnicki v. Vopper (2001) Chapter 8 Cox Broadcasting v. Cohn (1975)/Florida Star v. B.J.F. (1989) Fry v. Ionia Sentinel-Standard (1980) Barber v. Time (1942) Virgil v. Time, Inc. (1976) Jones v. Herald-Post Co. (1929) Hall v. Post (1987, 1988) Duncan v. WJLA-TV (1984) Cibenko v. Worth Publishers (1981) Time, Inc. v. Hill (1967) Cantrell v. Forest City Publishing Co. (1974)

NEWS GATHERING CASES Chapter 9 Branzburg v. Hayes (1972) Pell v. Procunier (1974) Saxbe v. Washington Post (1974) Houchins v. KQED (1978) Richmond Newspapers v. Virginia (1980) Rice v. Kempker (2004) Youngstown Pub. Co. v. McKelvey (2005) Desnick v. ABC, Inc. (1995) [on pages 328-329] Berger v. Hanlon (9th Cir. 1997, 1999)/Hanlon v. Berger (U.S. Supr. Crt. 1999) Citzens for Responsibility and Ethics in Washington v. U.S. Dept. Homeland Sec. (2009) U.S. v. Nixon (1974) Associated Press v. U.S. Dept. of Defense (2006) Prison Legal News v. Executive Office for United States Attorneys (2011) NCAA v. Associated Press (2009) SOURCES/CONTEMPT CASES Chapter 10 Cohen v. Cowles Media Co. (1992) Ventura v. Cincinnati Enquirer (2005) Branzburg v. Hayes (1972) Hatfill v. Gonzales (2007) Shoen v. Shoen (1993) U.S. v. Burke (1983) In re Special Proceedings (2004) Doe v. 2TheMart.com Inc. (2001)/Enterline v. Pocono Medical Center (2008) In re Grand Jury Subpoena: Joshua Wolf (2006) In re Madden (1998) O’Grady v. Superior Court (2006) New York Times v. Gonzales (2006) Too Much Media, LLC v. Hale (2010) U.S. v. Dickinson (1972) FREE PRESS/FAIR TRIAL CASES Chapter 11 Skilling v. U.S. (2010) U.S. v. Burr (1807)/Murphy v. Florida (1975)/Patton v. Yount (1984) Irvin v. Dowd (1961) Sheppard v. Maxwell (1966) Nebraska Press Association v. Stuart (1976) U.S. v. Corbin (2009) Colorado v. Bryant (2004) U.S. v. Scrushy (2004) [Chapter 12 next page]

Chapter 12 Press Enterprise v. Riverside Superior Court (1986) Richmond Newspapers v. Virginia (1980)/Publicker Industries v. Cohen (1984) U.S. v. A.D. (1994) Globe Newspaper Co. v. Superior Court (1982) Estes v. Texas (1965)/ Chandler v. Florida (1981) State ex rel Rosenthal v. Poe (2003) ADVERTISING CASES Chapter 15. Yes, Chapter 15, before 14. Bigelow v. Virginia (1975) Central Hudson v. Public Service Commission (1980) U.S. v. Caronia (2008) Coyote Publishing, Inc. v. Miller (2010) Anheuser-Busch Inc. v. Schmoke (1996) Ballen v. City of Redmond (2006) Alexander v. Cahill (2010) Mainstream Marketing Services, Inc. v. FTC (2004) FTC v. Colgate-Palmolive Co. (1965) Compare: Chicago Lawyers’ Committee v. Craigslist, Inc. (2008) Fair Housing Council of San Fernando Valley v. Roommates.com (2008) COPYRIGHT CASES Chapter 14 Feist Publications v. Rural Telephone Service (1991) Miller v. Universal City Studios (1981) Associated Press v. International News Service (1918) Kane v. Comedy Partners (2003) Rosemont v. Random House (1966) Morgenstein v. ABC, Inc.(1998) Harper & Row v. Nation Enterprises (1985) Salinger v. Random House (1987) Fox News Network LLC v. Penguin Group (2003) Campbell v. Acuff-Rose Music, Inc. (1994) Rogers v. Koons (1992) Savage v. Council on American-Islamic Relations,Inc. (2008) Murphy v.Murphy (2007) Metro-Goldwyn-Mayer Studios, Inc. v. Grokster (2005) TELECOMMUNICATION CASES Chapter 16 Prometheus Radio Project v. FCC (2004) FCC v. Pacifica Foundation (1978) Action for Children’s Television v. FCC (1995) [TELECOM cases continued next page.]

[Chp. 16 cases continued.] In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Award” Program (2004) [p. 629] In re Complaints Against Various Broadcast Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show (2004) [p. 631] CBS Corporation v. FCC (2008) Fox Television Stations, Inc. v. FCC (2010) ABC, Inc. v. FCC (2011) Los Angeles v. Preferred Communications (1986) Turner Broadcasting System, Inc. v. FCC (1997) U.S. v. Playboy Entertainment Group, Inc. (2000)