SYLLABUS
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Law and Communications |
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Steven Helle |
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Journalism 241 |
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121B Gregory Hall |
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Fall 2002 |
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s-helle@uiuc.edu |
Required readings are from a packet available at Dup-It Copy Shop,
Wednesday, Aug. 28 – Fourteen words that have taken volumes to interpret.
The legal tenets of two theories. Course overview.
Judicial hierarchies, functions and terms,
"Legal Lingo," 1-3.
What is the name of the writ by which parties may
seek review before the U.S. Supreme Court? What is the significance of a denial
of a writ of certiorari? How many Justices on the U.S. Supreme Court? What are
the differences between a criminal and civil suit? What are the differences
between criminal and civil contempt of court?
Wednesday, Sept. 4 -- Libertarian theory, 4-11, and a case example, Cohen v.
What are the principles of libertarian theory in
the legal context? How do they characterize the Cohen case? Since the statute
under which Cohen was prosecuted mentions nothing about speech, how does he
make a First Amendment issue out of his case? Which First Amendment doctrines
allowing regulation of certain kinds of speech does the Court reject as
inapplicable in this case? Why? Is the Court protecting the "private
right" or the "public right" to freedom of speech in Cohen v.
Neoliberal theory, 17-27,
and a case example, Federal Communications Commission v. Pacifica Foundation,
Inc., 28-37 (listen to
oral argument in this case).
What are the principles of neoliberal
theory? How do they characterize the
Monday, Sept. 9 – Speech on the Internet: Which theory prevails? ACLU v.
What is the "problem" that the
Communications Decency Act is trying to remedy? How do the two provisions at
issue differ? How does this case differ from
Wednesday, Sept. 11 – Right of access to the press: Miami Herald Pub.
Under what condition is the statute in this case
activated? How is this kind of law said to "enhance" freedom of
expression? If the Miami Herald were not distributed publicly, would Tornillo
still be able to argue he should have access? What is the premise of his
argument? What are the potential threats to freedom of expression? Does the
ruling in this case emphasize libertarian or neoliberal
theory? Why? What is the role of government, according to the Court? Is
Tornillo "free" after this case is handed down?
Right of access to the broadcast press: Red Lion
Broadcasting Co. v. FCC, 59-68 (listen to
oral argument in this case), and Bollinger,
Freedom of the Press and Public Access: Toward a Theory of Partial Regulation
of the Mass Media, 69-72.
What is the relationship between spectrum scarcity
and the fairness doctrine? Can the print press be said to be subject to the
same "scarcity"? Whose freedom of speech is being protected in Red
Lion? What is government's role under the fairness doctrine?
What solution does Bollinger offer to offset the
disadvantages of both regulation and nonregulation?
Monday, Sept.16 -- The Federal Trade Commission: protector of the public
interest: FTC Act excerpts, 73; Warner-Lambert Co. v. FTC (Listerine case), 74-78.
How did the emphasis of FTC regulation change
after the Wheeler-Lea amendments of l938? What is it that the FTC is empowered
to regulate? What different forms does FTC regulation take? How does
affirmative disclosure differ from corrective advertising? What form of
regulation may involve wholly truthful speech?
Neoliberal theory in
operation: Valentine v. Chrestensen, 79-80; Virginia
State Board of Pharmacy v. Virginia Citizens Consumer Council, 80-89 (listen to
oral argument in this case).
What is "commercial speech"? Why is
commercial speech regulable in ways that
noncommercial speech is not -- what are the "commonsense
differences"? How can commercial speech be regulated, yet protected? Note
the characteristics of neoliberal theory in
commercial speech regulation.
Wednesday, Sept. 18 -- A First Amendment test for commercial speech
regulation: Rubin v. Coors Brewing, 90-97; Glickman v. Wileman
Bros., 98-105 (listen to
oral argument
in this case).
Analyze the four-part test for commercial speech regulation/protection: how does the first part differ from the last three, and how difficult does it seem to meet the test? Can true speech be regulated under this test? What part of the test would a total ban most likely violate? What are the government interests that the government claims it is promoting by its regulation of alcohol content on beer labels? Are they substantial? Does the regulation do what it is supposed to do? Are both the government and Coors speculating about the impact of the regulation? Which has the benefit of the doubt, or to look at it from the other side, which has the burden of proof? Which part(s) of the test does the regulation fail? What alternatives to the ban on alcohol content labeling might there be? Is this speech even commercial, according to Justice Stevens? What is the role of commercial speech regulation, according to Stevens? Is the majority opinion in Glickman libertarian or neoliberal? What facts of the case almost compel that interpretation here, according to the majority? What theory would you ascribe to the dissenters? Does this case involve speech? Compare Justice Stevens’ interpretation of economic motivation as a basis for protection/nonprotection in Rubin and Glickman. What makes Glickman different than, e.g., Miami Herald v. Tornillo (in which the government sought to compel speech)? What test does the majority apply (and does that test involve any element of content regulation)? Does paying money for speech make it unprotected? If the fruitgrowers wanted to pay money for advertising their product, could they be stopped? Why can they be required to pay for advertising their product when they do not want to pay the money?
Monday, Sept. 23 -- Electronic media regulation. Scarcity, power and
captive audience rationales: NBC v. United States, 106-08; Jaffe,
The Editorial Responsibility of the Broadcaster, 108-09; CBS v.
Democratic Nat'l Committee excerpt, 109; Vice President Agnew's
Des Moines Speech, 110-17; Karp, TheLie of TV's Political Power, 117-22.
These readings address rationales for regulation
of the electronic media. Allow yourself a fair amount of time to read and
digest the various readings. The NBC case picks up on the spectrum scarcity
rationale that we came across in the Red Lion case, and Justice Murphy and
Spiro Agnew offer another rationale, the power rationale, although they
approach it differently.
In whose interests is it to foster the power rationale, according to Karp? What do we mean when we talk about the power of the press,and in particular what is the power that the electronic media are said to exercise. Is it easier to protect speech that is ineffective, that is not powerful? What are the major rationales for broadcast regulation? What are the counterarguments to each?
Equal time rule, sec. 315 of FCC Act, 125-26; criteria for "legally qualified candidates," 127; initial candidate access, sec. 312(a)(7)
Would a Vegetarian Party candidate for county recorder be able to obtain equal time? What if no other candidate for county recorder had yet obtained time? What if the Democratic and Republican candidates had been given time in advance of the primaries, but the Vegetarian candidate was unopposed? What are the two threshhold requirements for application of the equal time rule? What are the exceptions to equal time? If the candidate is accorded equal time, must the topics he or she addresses pertain to the topics addressed by prior candidates who have been accorded time? What is the possible implication of the restriction that broadcasters cannot edit any of the candidate's program? What are the limits on what a station can charge candidates for use of a broadcasting station? How does 312(a)(7) differ from 315?
"The Fairness Doctrine: What's Gone--What's Left," 128-30. You may want to review your notes on the Red Lion case or the case itself.
What is the fairness doctrine? What are
the two parts to the doctrine? What was the FCC's record of enforcing
the fairness doctrine? What is the current status of the fairness doctrine
after Aug. 4, 1987?
Wednesday, Sept. 25 -- Reporter privilege: Intro to Branzburg,
131-33; Branzburg v. Hayes, 133-43 (listen to
oral argument in this case); Illinois
reporter privilege statute, 144; Cohen v. Cowles Media Co., 145-48
What is the difference between criminal and civil
contempt of court? In Branzburg, the press sought a
privilege not to testify that was qualified or conditional, instead of an
absolute privilege that would have immunized it from ever having to testify.
What were the conditions under which the press would have to testify even if
the Court adopted the privilege? What problems did the Court foresee in a
qualified privilege? How was the press' logic regarding the need for a
qualified privilege self- defeating, according to the Court? Note carefully the
line-up of the Justices; why is Powell's opinion of particular significance?
How can you argue that the Court did recognize a constitutional
privilege in Branzburg?
Under what conditions does a reporter in
Illinois
lose the statutory privilege? Who would have the right to release a privilege:
the source or the reporter? Does a source have any recourse if the reporter
discloses his or her identity? What are the elements of promissory estoppel? What is the nature of the alleged injustice and
are First Amendment interests factored into consideration of whether an
injustice occurred?
Monday, Sept. 30 --Shades of the Stationer's Company: Forays into the Fourth
Amendment. Zurcher v. Stanford Daily, 149-54 (listen
to
oral argument in this case); Illinois
search warrant statute, 155.
What are the alternatives when the police come
knocking with a search warrant? Why is a search warrant more objectionable to
the press than a subpoena? Under what conditions may a search warrant be issued
against an innocent third party in
Practice test, 156-62. Please answer the questions
in the space provided. Kent Yates’ flow chart appears on the page before the
practice test.
Tuesday,Oct. 1 -- Midterm,
No course materials of any kind may be used in the
examination room, nor may students engage in any conversation during the exam.
Wednesday, Oct. 2 -- A marketplace of ideas: Schenck
v.
What forms has regulation of the press taken? What
is seditious libel? What did the Framers of the First Amendment have in mind?
(A prior restraint involves a governmental suppression of speech based on its
content before publication.) How did Holmes view the danger posed by the
leaflets in Abrams? What is the nature of the clear and present danger test
proposed by Holmes and refined by Brandeis? In particular, what did Brandeis
think the state should have to prove before restricting speech? Rather than
"enforced silence," what did Brandeis prefer? Is it an irony that the
clear and present danger test protects speech only as long as it is
ineffective; once a speaker actually motivates an audience, then the speech may
be suppressed.
Monday, Oct. 7 -- The bedrock of the First Amendment: freedom from prior
restraint. Near v.
If protection against prior restraint is not
absolute, when is prior restraint permissible, according to the Court in Near
v.
What is the definition according to the majority
in Alexander? According to the dissent? Why is the destruction of thousands of
constitutionally protected magazines and videotapes not considered prior
restraint? Prior restraints generally are confined to what two governmental
actions? What would the majority in Alexander have done if it had been the
Court to first decide the Near case? Why is there a distinction in the
treatment of prior restraint and subsequent punishments? Can subsequent punishments
act as prior restraints? Are both the majority and the dissent arguing from
libertarian premises?
Prior restraint under the Nixon regime: Pentagon
Papers case, 186-202 (listen to
oral argument in this case). Suggested reading: B. Woodward & S.
Armstrong, The Brethren l60-75 (on reserve). Required:
What kind of documents were the Pentagon Papers?
Why did the government not want them disclosed? What element(s) of the clear
and present danger test was lacking? Under what conditions might a prior
restraint be granted after the Pentagon Papers case?
Why might the Progressive case have been a better
case, from the government's standpoint, for a prior restraint? What element of
the clear and present danger test, at least arguably, was lacking in the
Progressive case?
Wednesday, Oct. 9 -- "The power to tax is the power to destroy," Grosjean v. American Press Co., Minneapolis Star &
Tribune Co. v. Minnesota Commissioner of Revenue, Arkansas Writer's Project v.
Ragland, and Leathers v. Medlock, 208-25.
How was the checking function imperiled in Grosjean? On what grounds did the Court strike the tax in
Minneapolis Star? Did it make any difference that the press was better off
under the use tax than it would have been if the legislature had imposed the
same sales tax to which other businesses were subject? How did the press both
win and lose in the Minneapolis Star case? How is the Ragland case like
Minneapolis Star and how is it different; why is it an easier case to decide
than Minneapolis Star? What theory of press freedom guided the court in these
three cases? What courses of action are left open to the state of
Monday, Oct. 14 – Circumventing the prior restraint prohibition through
conditional rights: Hannegan v. Esquire, Inc., 226-30;
Rust v. Sullivan, 230-35 (listen to oral argument in this case); Rosenberger v.
Why was control of content not
constitutional in Hannegan v. Esquire, Inc.? Can Hannegan be reconciled with Rust v. Sullivan? In what area
that we have already covered has the press been obliged to agree to state-imposed
conditions on speech rights? Note instances of conditions on rights in cases to
come. What rationales did the Court use in Rust to justify allocation of funds
for speech in the way the government preferred? What is the law of conditional
rights after Rust v. Sullivan? Was the restriction against advising pregnant
women about abortion as an option a restriction on content? What is the
difference between a content and a viewpoint restriction? In what context other
than his dissent in Rust has Justice Blackmun
asserted that the truth of the speech should be a total bar to regulation? Who
are the speakers in Rust? In Rosenberger? Why was the regulation a viewpoint
restriction in Rosenberger? Is the difference between Rust and Rosenberger that
the University in the latter had the student organization sign an agreement
that dissociates the views of the students from those of the university? What
if the University had all student organizations sign agreements, in
order to receive funding, that their views must coincide with those of
the University -- would that be constitutional under the law of Rust and
Rosenberger?
Wednesday, Oct. 16 -- Free press versus fair trial: the "problem"
of prejudicial publicity. Pember, "Does pretrial
publicity really hurt?", 244-47; Irvin v. Dowd and Sheppard v. Maxwell, 248-56
(listen to oral argument in the Sheppard case).
What is the nature of the problem that publicity
is said to pose for fair trials? Why might it not be as much of a problem as
jurists think it is? What kinds of evidence are most sensitive? Are Irvin and
Sheppard First Amendment cases? Must jurors be completely free of any knowledge
regarding the case before they can be selected? What options do judges have in
responding to publicity they consider prejudicial?
Gag orders: Nebraska Press Assn. v. Stuart, 257-63
(Kent Yates’ prior restraint flow chart appears after Nebraska Press
case)(listen to oral argument in this case); when one may
disobey gag orders, United States v. Dickinson, In re Providence Journal (both
panel opinion by Wisdom, J., and en banc order), 264-75. Suggested: B. Woodward
& S. Armstrong, The Brethren 420-23 (on reserve).
What is the test the Court proposes to test the
validity of gag orders? How does the analysis in this case compare with the
analysis in Near v.
Monday, Oct. 21 – Access to the judiciary: veiled prior restraint? Gannett
Co. v. DePasquale (listen to oral argument in this case), Richmond
Newspapers, Inc. v.
Why is there no Sixth Amendment right on behalf of
the public and press to attend a pretrial hearing after Gannett? Stewart's
majority opinion in Gannett said the Court need not address the First Amendment
access right argument because the trial court judge gave the right "all
appropriate deference." The trial court judge had concluded after
listening to press arguments that an open hearing would create a "reasonable
probability of prejudice." Why was the holding in Nebraska Press Assn. of
no assistance to the press in Gannett? Is there an anomaly in concluding that
publication was not at issue, but the hearing could be closed because of a
"reasonable probability of prejudice"? What was the vote in Gannett
and who won?
What was the Court's rationale in recognizing a
First Amendment access right in
Continuing saga of a constitutional access right: (Recommended:
Globe Newspaper Co. v. Superior Court (listen to oral argument in this case);
Press-Enterprise v. Superior Court I; Waller v.
What were the state interests in Globe Newspaper
and how do those interests differ from the state interests in prior cases? Can
trials involving juvenile sex offense victims be closed after Globe Newspaper?
Where did the trial court go wrong?
What part of the two-part (three-part?) test was
determinative in the first Press-Enterprise case? What is the relevance of
press interests in analyzing an access right? What does Justice Stevens mean by
his comment in footnote three of his concurrence in Press-Enterprise?
How does Justice Powell reinterpret Gannett in the
majority opinion of Waller v.
What was the motivation for sealing the court
records in the Johnson case? What does Justice Steigmann
propose as an alternative to sealing settlement decrees?
Wednesday, Oct. 23 – Conditions on access: In re A Minor, 320-27. TV coverage
of the courts: Estes v.
Is In re A Minor a prior restraint case or an
access case? Does the distinction make sense, or is it artificial in a way that
allows the courts to control publication by merely defining the issue as
access? Under what conditions could the News-Gazette publish the name of the
minors?
What were the concerns of the Supreme Court in
Estes v.
News-gathering rights generally: Houchins v. KQED, Inc., 343-51 (listen to oral argument in this case).
What is the minimum right of access under the
First Amendment outside the judicial context? Why might a reporter for a
television station consider it imperative to have access and find alternatives
wanting? Given the way the "right" of access is construed in Houchins, is it left to the courts or to the sheriff to
define the extent of access? If the public had a "right to know"
about jail conditions, could the media gain access using that argument -- and
then decline to report what they discovered it they decided it was not
newsworthy?
Monday, Oct. 28 – Statutory access: Federal Freedom of Information Act, 352-55;
"Public Eye--Federal Service Gets Wider Use by Sleuths, Snoops--and
Senators," 356-59; Illinois Open Meetings Act, 360-63; Illinois Freedom of
Information Act, 364-70; sample request letter, 371.
Does the motivation of the requester matter under
the federal freedom of information act? Under the
Wednesday, Oct. 30 -- Publication versus privacy: Bartnicki
v. Vopper, 372-81;
What First Amendment test does the majority apply
in Bartnicki? What are the two asserted
justifications for the federal Wiretapping and Electronic Surveillance statute?
What is the "dry up the market theory" behind the statute and why
does the majority contend that it doesn’t justify the statute’s application in
this case? Is constitutional privacy at issue in this case? What factors in
this case favor the defendants? What is it about the content of the intercepted
conversation that triggers First Amendment protection? Under what conditions
may reporters in
What is the legal standard for whether an
intrusion has occurred? How does the intrusion tort differ from the other
privacy torts? What facts in the Miller case support the finding that an intrusion
occurred? Can a person's heirs sue for invasion of that person's privacy after
he or she dies? Does the subject matter of the story bear on whether there has
been an intrusion? How might a reporter argue that the property owner consented
to an intrusion? Is a restaurant a public place or a private place? Would the
reporters in the Le Mistral case have been better off if they had ordered a
meal before turning on their camera? Why might the presence of media make a
search by police illegal? Why might reporters and photographers be liable when
they accompany police during searches? Why was Drew Pearson not liable for the
intrusion involved in obtaining the documents from Sen. Dodd? When might a
reporter be liable for an intrusion committed by somebody else?
Thursday, Oct. 31 -- Midterm,
No course materials of any kind may be used in the
examination room, nor may students engage in any conversation during the exam.
Monday, Nov. 4 – Privacy torts related to publication: please review listing
of privacy torts at page 386 in the Miller case; Sidis
v. F-R Publishing Corp., 400-02; Cox Broadcasting Corp. v. Cohn, 402-07 (listen
to oral argument in this case).
How are constitutional privacy and the tort of
privacy distinguishable? What are the four privacy torts and what are the
differences in what they compensate? What is the test for whether a public
disclosure of private, embarrassing facts has occurred? Is truth a defense to
public disclosure of private, embarrassing facts? How does the injury differ in
privacy suits from the injury in defamation? How did
Wednesday, Nov. 6 – Intro to libel (not "lible,"
or "liable"), 408-11. An excellent, easy-to-read resource explaining
the development of current libel law is Robert Sack’s "Libel, Slander and
Related Problems" at pages l-38 (on reserve). Also highly recommended is
Anthony Lewis’ book "Make No Law."
What are the elements of defamation? Does use of
the word "allegedly" negate the defamation? Is it libelous to quote a
source who says something defamatory -- as long as you quote the source
accurately and attribute the quote? What is the difference between libel and
slander? What are the different kinds of damages? Who is sued most often, media
or nonmedia, for defamation? How successful is the
media in defending libel suits? What is strict liability?
Encouraging debate that is "uninhibited,
robust and wide-open" as well as "caustic and sometimes unpleasantly
sharp": New York Times Co. v. Sullivan, 412-23 (listen to oral argument in this case).
Why did the U.S. Supreme Court choose this case to
change the common law of libel from what it had been for hundreds of years? If
"state action" is necessary before the First Amendment is violated,
where is the state action in Sullivan? Why protect even false libels? In
addition to proving that he or she has been libeled, what else must a public
official libel plaintiff prove after Sullivan? Why is this additional burden
imposed on public official plaintiffs?
Monday, Nov. 11 — The actual malice privilege and its expansion: Garrison v.
For what libels do public officials have to prove
actual malice? Who is a public official? What is actual malice? How might you
have malice without having actual malice? Or vice versa? After Masson,
is it automatically actual malice for a reporter to misquote a source? Might
the difference between accuracy and truth apply in this case? How might you
argue that more libel suits will go to trial after this case? If a reporter
does not have the exact words, what is the safest course? Who has to prove
actual malice after the Butts/Walker cases? Why?
Culmination of the public interest approach, Rosenbloom v. Metromedia, Inc.,
444-48 (pay particular attention to Justice Marshall's analysis of the
plurality opinion in his Rosenbloom dissent).
Consider carefully the evolution in the cases
where actual malice is the relevant standard of care. What is the standard of
care if it is not actual malice? How does Rosenbloom
arguably represent the epitome of the neoliberal
approach? Might "public concern" be interpreted differently? Which
interpretation offers the most protection for the press? What is the problem
with the public interest test according to
Wednesday, Nov. 13 – Delimiting the actual malice privilege: Gertz v. Robert Welch, Inc., 449-61 (listen to oral argument in this case).
Why did the Court think Rosenbloom
inadequately protected the interests of both libel plaintiffs and defendants?
How did the law of libel change in Gertz from what it
had been in Rosenbloom? What would have happened if Rosenbloom had sued after Gertz?
What are the definitions of public figures that the
Why can it be said that the Supreme Court extended
less protection in Gertz than in Rosenbloom?
Why can it be said that the Court extended more protection? How does the
interpretation of public interest before Gertz change
your answer regarding the change in protection after Gertz
when public interest is no longer relevant?
Monday, Nov. 18 – Progeny of Gertz: Time v. Firestone,
462-68;
In considering Mrs. Firestone's public-figure status,
the Court wrote: "Dissolution of a marriage through judicial proceedings
is not the sort of 'public controversy' referred to in Gertz,
even though the marital difficulties of extremely wealthy individuals may be of
interest to some portion of the reading public." What was it about the
"public controversy" in Time v. Firestone that disqualified Mrs.
Firestone as a public figure? What would Mrs. Firestone have had to prove upon
retrial, and would she necessarily have been able to prove it? How difficult does
it seem to be to prove actual injury after Time v. Firestone? Can the press
create public figures simply by giving them coverage after Wolston
and Hutchinson? What is the status of the involuntary public figure? How would Wolston and Hutchinson have been decided under the public
interest test?
Wednesday, Nov. 20 – Putting a Rosenbloom gloss on
Gertz: Dun and
Bradstreet v. Greenmoss Builders, 476-82. Kent Yates’ libel flow charts appear after Greenmoss case.
How might Dunn & Bradstreet be said to preserve
all the disadvantages of Gertz and Rosenbloom, from the press' viewpoint, and none of the
advantages? Can it be argued that there was, in fact, public interest in the
libel? Which interpretation of public interest yields a negative finding? What
do public figures without public interest have to prove after Dunn &
Bradstreet?
Monday, Nov. 25 – Sunday, Dec. 1—No class, Thanksgiving break.
Monday, Dec. 2 – A reaffirmation of the actual malice standard: Bose Corp.
v. Consumers Union, 483-87 (listen to oral argument in this case); truth as a
defense: Philadelphia Newspapers, Inc. v. Hepps, 488-91.
What was the libel in Bose Corp.? Might there have
been another way to resolve this case that would have foregone analysis of the
actual malice standard? Why is such a large measure of discretion invested in
the appellate courts when reviewing lower court findings of actual malice? Is
there a danger in this for the libel defendant?
At common law, who had the burden on the issue of
truth, i.e. did plaintiffs have to prove the libel was false or did defendants
have to prove it was true? Why did the Court change this burden? In
what cases does the burden not change in the future? How might the libel
plaintiff's flow chart be redrawn after this case?
Libel defenses, 492-94.
Why might the press prefer to rely on the actual
malice privilege rather than on defenses? If by retracting a libelous comment,
the law would enable a publisher to prevent a libel suit or limit damages,
would that be a beneficial law? Would there be drawbacks? What is the
significance of summary judgment for the press?
Wednesday, Dec. 4 – False light: Time v. Hill, 495-500 (listen to oral argument in this case -- with Richard
Nixon as Hill's attorney); Cantrell v. Forest City Publishing Co., 501-03; Lovgren v. Citizens First National Bank, 504-07.
How do false light and defamation overlap. How are
they mutually exclusive? Note that the Time, Inc. v. Hill case occurred in
l967, and thus was a precursor to Rosenbloom v. Metromedia in defamation. What is the argument that private
individuals should only have to prove negligence in false light suits? Given
the nature of the injury, is there an argument that all plaintiffs should have
to prove actual malice? What is the problem, from the press' standpoint, with
the actual malice standard when dealing with fiction? What is the standard of
care in
Copyright: 17 U.S.C. §§102, 106, 107, 201, 302, 401, 504, pp.508-11; Suntrust Bank v. Houghton Mifflin Co., 512-26.
What does copyright protect? What exclusive rights does a copyright owner have? Is the author always the copyright owner? How does the "work-for-hire" doctrine affect the copyright ownership of a reporter? Of a newspaper that has put together an advertisement for a merchant? What are the factors relevant to a determination of "fair use" of copyrighted material? Would it be fair use to copy a newspaper article because it would be a negligible amount copied relative to the whole newspaper? Can a radio station, e.g., consistently read the news accounts in a local newspaper over the air, instead of having its own reporters, as long as the accounts are rewritten? How long does copyright last? What is required in a copyright notice? What are the remedies for copyright violation?
What was the Statute of Anne? What are the goals of copyright law? Does your work have to be published before
receiving copyright protection? What
does the plaintiff in a copyright case have to prove? What are the defenses? What does public domain mean? How might copyright protection and the First
Amendment conflict? How do courts
generally resolve the conflict? What is
the idea/expression dichotomy? The New York Times reviewed “The Wind
Done Gone” and found it “decidedly unfunny” – would that mean that it is not
parody? Which would be more protected
under fair use: parody that critiques
the original or parody that uses the original for its identifiable qualities to
make an unrelated comment (think Weird Al Yankovic)? Which element of fair use are you relying on
in your answer? What is the risk of
parody with regard to the fourth fair use factor? How do you measure market harm in a parody
case?
Monday, Dec. 9 – Copyright (continued), Nabbing Napster: A&M Records Inc. v. Napster, Inc., 527-41.
Which exclusive right(s) of the copyright owner are Napster users violating? What fair uses does Napster allege? What is the commercial use under the first fair use factor? Is it possible that the market for the original can be improved by the use and the use still not be fair under the fourth factor? What are the elements of contributory infringement? Of vicarious infringement? What is the prerequisite for both? What had the record companies not done that requires a less sweeping injunction? What difficulties lie ahead for Napster in honoring such an injunction?
Wednesday, Dec. 11 -- Misappropriation: Zacchini
v. Scripps-Howard Broadcasting Co., 541-46; White v. Samsung, 547-58.
How does this tort differ from a typical privacy
tort? What are the defenses? Why was Scripps-Howard not protected in putting Zacchini's act on its evening newscast? Why is the Zacchini case of particular concern to broadcasters? Is the
Court determining that Zacchini, in fact, was
financially injured and should be compensated? Since the right to sue, both for
libel and invasion of privacy, dies with the person, why would it be even
arguably any different for the misappropriation tort?
What was it that Samsung appropriated from Vanna White? What is the problem that the dissenters see in
going beyond "name or likeness" in conferring protection against
misappropriation? If the "Wheel of Fortune" set is part of Vanna White's identity, could she sue another hostess for
standing in front of the letter board? Is Vanna White
part of the identity of "Wheel of Fortune," and, if so, what
implications might that have for Vanna White? For
Samsung? For the owners of the show? Why is Samsung's ad not parody? Why does
the dissent disagree? Is Vanna White's
"commercial speech protected more than Samsung's? What does the plaintiff
have to show in a claim under section 43(a) of the Lanham Act?
New twists in torts: intentional or negligent
infliction of emotional harm, Hustler Magazine v. Falwell,
558-62 (listen to oral argument in this case), and Kolegas v. Heftel Broadcasting
Corp., 563-68.
What dangers do these new torts hold for the press
-- what kinds of stories could inflict this kind of harm? Why might the
infliction of emotion harm tort logically be more suitable than the libel tort
in many cases brought as libel cases? What is the problem with using actual
malice as the standard in an intentional tort case? What else must the Court be
contemplating in the definition of actual malice beyond whether the defendant
in fact entertains serious doubts as the truth?
Final exam will be a combined section
examination, time and site to be announced.