This term, COM 557 (Government and Mass Communication) will be taught as a seminar examining legal, policy and regulatory issues presented by new media technologies.  The course is designed both for students whose principal area of interest is media law and policy as well as those who can use it to enhance their work in other areas—e.g., new media technologies, political communication, the information society, media effects.  No previous coursework in law is required for students taking this class.

The course has three major objectives.  First, it will introduce you to (or reacquaint you with) legal issues that arise in connection with new media technologies.  The Internet and other digital media raise a number of questions about communication law and policy: Should they be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new?  How have the courts, Congress, and other lawmaking bodies responded to new media technologies?  What regulatory regime is emerging, if any, to govern new media?

Second, looking beyond individual cases and policies, the class will explore general relationships between technological change and the law.  What drives changes in laws that govern media technologies?  How do old media use their influence to shape laws that affect new media?  What characteristics of the legal system—especially the dynamics of litigation and congressional lawmaking—affect society's response to new media?  What's the role of citizen activists in shaping laws?  How does social science research (e.g., studies about the effects of new media) bear on legal decisions?

Third, the course will cultivate skills needed to conduct legal research and produce scholarly articles.  To that end, we'll talk about finding and navigating primary and secondary sources in the field, mainly court decisions, government reports, law review articles, and policy studies.  In addition, we'll discuss writing and publishing scholarly studies in media law.  The major writing assignment for the course will give you an opportunity to refine and apply your knowledge as you explore a topic within the purview of the course.

Richard B. Kielbowicz

Office: 234A Communications Bldg

Phone: (206) 543-2388

Email: kielbowi@u.washington.edu (please put "COM 557" in the subject line when you write)

Office hours: Tuesday 10-11, Thursday 1:30-2:30, and by appointment

There is no text book; most readings will be available from online sources.  I will distribute copies of the few short readings not available online.

Assignments will be explained fully in class and on a separate website.  Beyond participating in the seminar discussions, each member will write and present a paper and prepare a few article or case abstracts that relate to class discussions.

Paper

You can choose from among three possibilities for your paper, the major written assignment for the course: You can prepare a research paper, a critical bibliographic essay, or a legal brief (similar to a law review article) on almost any topic dealing with the legal consequences of changes in communication technology.  You could study a specific legal topic (e.g., the Internet and jurisdiction in libel suits), an aspect of lawmaking or policymaking that cuts across issues (e.g., the role of citizens groups), or take a historical look at some aspect of communication technology and the law.  If you tackle a topic that you plan to develop into a conference paper or publishable article, I will be happy to work with you toward that goal during the quarter and beyond.

Abstracts

Each student will prepare three abstracts of individual readings related to class discussions.  The readings will be selected in consultation with the instructor.  In most cases, the readings should be law review articles, but under some circumstances the readings can be articles from social science journals or chapters from books.

Although research about law and policy resembles work in other social sciences, it involves use of specialized resources; furthermore legal writing exhibits distinctive features.  To help demystify legal research, the seminar will offer several mini-workshops to give you the tools needed to get started in the field.  Likely topics include:

• Finding and reading court opinions

• Finding and reading law review articles

• Navigating congressional materials

• Navigating administrative law (e.g., FCC) and other specialized areas

• Writing law review articles and submitting them to journals

• Undertaking legal studies as applied research and advocacy

The instructor will be largely responsible for conducting these workshops.  They will be offered during class, roughly one a week for the first two-thirds of the term. 

After we quickly cover introductory material, the seminar will tackle some of the most important legal and policy questions affecting new media.  We will typically approach topics in the following manner:

• We'll start with a basic question about legal matters presented by new media: what's the supposed problem that the courts, legislatures, or administrative agencies addressed in connection with new media?

• Then we'll briefly review how the legal system dealt with the same question for older media (if it was addressed) to see what rules emerged; for some topics, the instructor will assume the burden of summarizing the law that developed for print, broadcast or common carrier.

• For each topic, our discussions will focus on one or more (rarely more than three) legal decisions about new media (leading cases, laws passed by Congress or state legislatures, administrative rulings [e.g., FCC, Federal Elections Commission decisions]).

• We'll supplement our reading of the primary legal materials with law review articles and selections from scholarly journals that provide context and analysis.

An example of this approach: as the Internet rapidly spread to households, some citizens and lawmakers grew concerned about children's access to indecent content (the problem).  Congress responded with the Communications Decency Act in 1996 (legislation), which basically took the definition of indecency developed for over-the-air broadcasting (the old law) and extended it to the Internet.  The next year, however, the Supreme Court struck down the indecency provisions (distinguishing old media from new for this problem).

1.  Introduction to the course

2.  Approaches to studying new media and the law; general questions

• Short excerpt from Ithiel deSola Pool, Technologies of Freedom (1983), chap. 1: "A Shadow Darkens."

• Excerpt from Lawrence Lessig, Code and Other Laws of Cyberspace (1999).

3.  Protecting children from indecent and supposedly harmful content.  What special protections, if any, should be established to safeguard children from harmful content on the Internet and in digital games?

• Old law: FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (Supreme Court upholds punishing indecent speech in broadcasting even though it's protected for print and film).

• Reno v. ACLU, 521 U.S. 844 (1997) (Supreme Court decision striking down parts of Communications Decency Act and also the Court's leading statement on the constitutional status of the Internet).

• United States v. American Library Association, 539 U.S. 194 (2003) (2003) (Supreme Court decision upholding Children's Internet Protection Act that required most public libraries and schools to install anti-pornography filters on computers used to access Internet).

• Video games: Video Software Dealers Ass'n v. Maleng, 325 F. Supp.2d 1180 (W.D. Wash. 2004) (one of several cases, this one from Washington, striking down state laws restricting access by minors to music or video games with violent content).

• Articles to be determined (some selected by students in consultation with instructor).

4.  Libelous speech on the internet.  How should libel law that developed in the earliest days of printing be adapted for the Internet?  More specifically, what special problems does the Internet pose in applying traditional concepts of libel law?  Much case law in this area is highly tentative; hence, most readings will be articles that address questions such as

• Can linking to a web page with defamatory material create liability?

• What's the distinction between a publisher and mere distributor for purposes of establishing responsibility in libel?

• What constitutes publication on the Internet for purposes of determining when the statute of limitations starts running?
  
• Ben Quarmby, "Protection from Online Libel: A Discussion and Comparision of the Legal and Extrajudicial Recourses Available to Individual and Corporate Plaintiffs," 42 New England Law Review 275 (2008)
  
• Anthony Ciolli, "Defamatory Internet Speech: A Defense of the Status Quo," 25 Quinnipiac Law Review 853 (2007).

5.  Anonymous speech on the Internet.  Should anonymous speech on the Internet be protected when it's libelous, hate speech, or constitutes harassment?

• Old laws: McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (Supreme Court decision striking down state law that required campaign materials to identify source); Talley v. California (1960 Supreme Court decision upholding anonymity for most political pamphleteering); Branzburg v. Hayes (1972) (Supreme Court ruling that First Amendment gives little or no protection to journalists who claim a right to keep their sources confidential).

• Doe v. 2The Mart.com Inc., 140 Supp. 2d 1088 (W.D. Wash. 2001) (Washington state case giving limited protection to anonymity of those posting information on web sites).

• America Online, Inc. v. Nam Tai Electronics, Inc., 571 S.E. 2d 128 (Va. Sup. Ct. 2002) (requiring AOL to reveal the identity of person who posted statement that harmed business).

• O'Grady v. Superior Court, 139 Cal. App. 4th 1423 (2006) (considering whether bloggers are entitled to protection as journalists under California shield law and therefore don't have to reveal sources).

• Articles

6.  Hate speech and other threatening communications; liability for consequences

• Old law: R.A.V. v. St. Paul, 505 U.S. 377 (1992) (Supreme Court decision striking down hate speech statute).

• Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9^th Cir. 2002) (upholding verdict against anti-abortion website considered a threat to the lives of medical providers).

• Articles

7.  Copyright.  How can copyright law be adjusted to balance the interests of creators and audiences in the Internet age?

• Old law: Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984) (Supreme Court decision that manufacturers of video recorders can not be held liable when they are used to violate copyright).

• Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005) (Internet services that facilitate file sharing of copyrighted materials can be held liable for infringement).

• Digital Millennium Copyright Act (1998 law that extended U.S. copyright principles to digital materials).

• Articles

8.  Net neutrality.  Should ISPs be allowed to constrain subscribers' choices by favoring access to some information services over others (net neutrality)?

• Internet Freedom Preservation Act (2007 Senate bill, not yet law, to prohibit discrimination by ISPs in customers' access to content and services).

• Articles

9.  Political campaign speech.  Should political speech and campaign advertising on the Internet be subject to any rules?

• Federal Elections Commission web site

• Articles (there's not much law that now applies to campaign speech on the Internet, but there are proposals; hence this section will rely heavily on articles and commentary).

Th Sept. 25

• Intro to class

T Sept. 29

• Mini-workshop: finding and reading cases (skim Reno v. ACLU if possible mostly to see how a court opinion is structured)

• Approaches to studying new media (Pool and Lessig readings)

• Protecting children from indecent/harmful content—old law (instructor)

Th Oct. 2

• Mini-workshop: finding and reading law review articles

• Approaches to studying new media (continue discussion of Pool and Lessig readings)

• Pick topics for first individual readings and abstracts: let me know which topic, 3-6 above, you'd like to do for your first outside reading

T Oct. 7

• Protecting children from indecent/harmful content—background (instructor); Reno (read case: tip--read just the court's opinion that begins, after all the introductory stuff, after the phrase "opinion of the court"); subsequent developments (instructor)

• Read  Eric J. Segall, "Internet Indecency and Minors: The Case for Parental and School Responsibility not Congressional Regulation," 110 Penn. St. L. Rev. 615 (2006). 

Th Oct. 9

• finish talking about Reno
• review post-Reno developments by reading Eric J. Segall, "Internet Indecency and Minors: The Case for Parental and School Responsibility not Congressional Regulation," 110 Penn. St. L. Rev. 615 (2006). 
  

T Oct. 14 – Meet for first hour only

• Finish talking about harmful content and children

• Read United States v. American Library Association, 539 U.S. 194 (2003).

• Read Video Software Dealers Association v. Maleng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004).

• Note: I pushed the deadline for all abstracts back by one period so that abstracts that were due on Oct. 14 are now due Oct. 16 and all others move back one period

Course grades will be based on

• General seminar participation……… 25%

• Abstracts of readings…...…………… 25%

• Research paper……………………… 50%