Communication 139B:
Law Communication, and Freedom of Expression (part two)

Spring 2002
MWF 2:30 3:20pm
Center 212

Prof. Tarleton Gillespie

Office hours: Fri., 10-12, Sequoyah 200


This course examines the legal framework of the freedom of expression in the United States as it comes into contact with the complexities of a modern media environment. While current First Amendment jurisprudence continues to struggle with long standing concerns for speech, communication, democracy, and power, both the arrival of new technologies, and changes in the social and economic arrangements of existing media, raise new questions and concerns.

We will discuss the implications of media concentration and mergers in the culture industries; the convergence of media technologies and the efforts of broadcast policy to address that; the rise of the Internet and competing claims for the role it would play in relation to freedom of speech; the First Amendment implications of recent efforts to regulate the Internet; and the hard cases that the Internet creates for speech, including cyberpornography, online hate speech, ambiguities around jurisdiction online, the implications of the "digital divide," and finally the First Amendment implications of recent copyright cases.


The most important requirement of the course is the readings; there is quite a bit of reading, but you'll find the course and the class discussions more rewarding if you keep up with it as you go.

Two shorter papers (3-4 pages each), due in weeks 4 and 8, will ask you to reflect on a specific concern from that part of the class.

paper #1
paper #2
paper #3

The majority of your grade will be based on a longer paper (6-8 pages); this paper, while it will of course deal with the readings and lectures, will be a chance for you to delve deeper into an aspect of contemporary free speech issues that interests you. It will be due week 9 in rough form; anyone getting a B+ or below will re-write their papers, due during finals week.

short papers: 25% each final paper: 50%


Attendance will be taken at every class meeting. While attendance does not count specifically towards your grade, you cannot pass this class if you miss more than six sessions.



There are three assigned books for this class; they are available at the UCSD Bookstore.

Streeter, Thomas, Selling the Air U of Chicago P: Chicago (1996)
Sunstein, Cass, Princeton UP: Princeton, NJ (2001)
Aufderheide, Patricia, Communications Policy and the Public Interest Guilford Press: New York (1999)

In addition, a required course reader will be sold (by University Printing Service) at the end of the first three course meetings. There are also several readings online.

[[ week 1 ]]

Mon., April 1 -- introduction


ONE: The First Amendment and the shape of the modern media industry

Wed., April 3 -- broad concerns about free speech and electronic media

Owen Fiss, Chapter 1 of Liberalism Divided (1996)
** this is not in the reader; the book is on reserve if you need it **

Fri., April 5 -- media regulation and "corporate liberalism"

STREETER, Chapters 1+2

[[ week 2 ]]

Mon., April 8 -- the FCC and the character of broadcast policy

STREETER, Chapters 4+5

Wed., April 10 -- fairness in broadcast, print, and cable

Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969)
Miami Herald v. Tornillo , 418 U.S. 241 (1974)
Jerome Barron, "On Understanding the First Amendment Status of Cable," Georgetown Law Review 57 (1989)

Fri., April 12 -- public interest and the obscene

STREETER, Chapter 8
FCC v. Pacifica Foundation , 438 U.S. 726 (1978)

[[ week 3 ]]

Mon., April 15 -- media concentration and "convergence"

Ben Bagdikian, preface to the 6th ed. of Media Monopoly (1983/2000)
Robert Entman, Chapter 5 of Democracy Without Citizens (1989)
Benjamin Compaine, "Mergers, Divestitures, and the Internet: Is Ownership of the Media Industry becoming Too Concentrated?" (1999)

Wed., April 17 -- corporate power and free speech -- Film: "Free Speech for Sale"

Fri., April 19 -- AOL/Time-Warner and Microsoft

FTC's approval of AOL / Time-Warner merger
FCC memorandum on AOL / Time-Warner merger
James Boyle, "Missing the Point on Microsoft", Salon


TWO: The arrival of the Net and its implications for the freedom of speech

[[ week 4 ]]

Mon., April 22 -- the Internet

Bruce Sterling, "A Short History of the Internet"
Robert Kahn, "The Role of Government in the Evolution of the Internet"
Manuel Castells, excerpt from The Rise of the Network Society (1996/2000)


Wed., April 24 -- optimism about the Net as a place
of speech

Mike Godwin, Chapter 1 of Cyber Rights (1998)
Al Gore, "Putting People First in the Information Age" in Anne Leer, ed. Masters of the Wired World: Cyberspace Speaks Out (1999)
John Perry Barlow, "Declaration of the Independence of Cyberspace"

Fri., April 26 -- concerns about Net as a place of speech

Mark Poster, "Cyberdemocracy: The Internet and the Public Sphere" in David Porter, ed. Internet Culture (1997)

[[ week 5 ]]

Mon., April 29 -- the Net as a "public forum"

SUNSTEIN, Chapters 1-4

Wed., May 1 -- citizens and consumers

SUNSTEIN, Chapters 5-7

Fri., May 3 -- re-imagining the Net as a free speech venue

SUNSTEIN, Chapters 8-9


THREE: The hard cases, new and old, the Net raises for the First Amendment

[[ week 6 ]]

Mon., May 6 -- hate speech online -- Film: ""

Wed., May 8 -- filtering and cyberporn

Lawrence Lessig, Chapter 12 of Code, and Other Laws of Cyberspace (1999)
ACLU, "Censorship in a Box"

Fri., May 10 -- rape in cyberspace

Julian Dibbell, "A Rape in Cyberspace"

[[ week 7 ]]

Mon., May 13 -- the digital divide

NTIA, Exec. Summary, "Falling Through the Net: Toward Digital Inclusion"
Jorge Reina Schement, "Of Gaps by Which Democracy We Measure" in Compaine, ed. The Digital Divide: Facing a Crisis or Creating a Myth?(2001)

Wed., May 15 -- borders and jurisdiction

David Johnson and David Post, "Law and Borders: The Rise of Law in Cyberspace"
** Intro and Parts I and II only **


FOUR: regulating the Net

Fri., May 17 -- Net policy

Rob Kitchin, Chapter 5 of Cyberspace: The World in the Wires (1998)

[[ week 8 ]]

Mon., May 20 -- deregulation and convergence

AUFDERHEIDE, Chapters 1-3


Wed., May 22 -- Telecom Act

AUFDERHEIDE, Appendix A, Chapters 4-5

Fri., May 24 -- CDA and Reno v. ACLU

AUFDERHEIDE, Appendix B: Reno v. ACLU (1997)


FIVE: copyright, the Net, and the First Amendment

[[ week 9 ]]

Mon., May 27 -- no class -- Memorial Day

Wed., May 29 -- copyright and the Net

American Bar Association, "Copyright Basics"
** only Sect. 1 "What Copyright Is" - Sect 12 "Copyright Registration" **
Jessica Litman, Chapter 5 of Digital Copyright (2001)
James Boyle, Chapters 3 + 6 of Shamans, Software, and Spleens (1996)


Fri., May 31 -- copyright and the First Amendment: fair use

** you will be assigned to read one of these cases; reading others is optional **

Sony Corporation v. Universal (1984)
Harper + Row v Nation Enterprises (1985)
Basic Books v. Kinkos (1991)
Feist Publications v. Rural Telephone (1991)
Acuff-Rose v. Campbell (1994)
Religious Tech Center v. Netcom On-Line (1995)
L.A. Times v. Free Republic (1999)

[[ week 10 ]]

Mon., June 3 -- DeCSS, DMCA, and code as regulation

Universal et al v Reimerdes et al, Injunction, August 2000
Pamela Samuelson, "Anticircumvention Rules: Threat to Science" Science

Wed., June 5 -- code as speech

Universal et al v Reimerdes et al, Appeals Decision, November 2001

Fri., June 7 -- conclusion



RE-WRITE of FINAL PAPER DUE** during finals week **