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Regulation Of Media Fall2004 Session02

• Readings Reports/Index Card Assignments due today
  1. Bring three questions to class based on the readings
  2. Imagine yourself a station manager who has just received the following letter. Your station has already been contacted about carrying the ad. What do you do? (KerryLetter)

The Structure and Practice of Media Regulation

• Last time we started to discuss the structure and practice of media regulation
  • Today we will go into more detail, especially with respect to the law
  • The core of that discussion was the following diagram, which you should have encountered in your readings:

• Let's examine each of these in turn
  • Norms
  • Law
  • Market
  • Architecture

Market

• The media market barely existed when the U.S. Constitution was drafted
• It can be argued that one of the goals of the framers was to construct a media market
  • A postal service which distributed newspapers at low cost
  • Provisions that secured authors and inventors exclusive rights for limited periods of time
    • Patents
    • Copyrights
    • An incentive to create
    • Not a license to control intellectual property indefinitely
  • Protections for religion, speech, the press, peaceful assembly, and petitioning for the redress of grievances
• Government subsidy has supported many of these goals, including patent, copyright, etc.
• The market has since become a powerful force, and one that has reached levels of control the framers attempted to architect against

Architecture

• Encouragement of diversity of ownership and through that diversity of expression
• Subsidies to ensure that diversity
• Limitations on ownership to encourage that diversity
• Based in a fear that if the people "become inattentive to the public affairs" ... we ... "shall all become wolves"

Norms

• Norms build from personal ethics into law (http://davis.foulger.net/research/speedingPaper.htm)

Law

• Law is an essential underpinning of our system
  • An expression of social norms
  • An organized method of settling disputes
  • Entails a combination of rules and sanctions
• The sources of the law
  • Common law
    • sometimes called discovered law
    • rooted in the commitments of the Magna Carta
      • which established a legal system
      • without supplying much in the way of rules
      • except that decisions should be by "equals"
    • A pragmatic system that solves real problems
    • Judges resolved disputes by examining the facts and finding an equitable solution
      • using precendent as a guide when they could
      • creating law where they could not find adequate precedent
    • An entire system of legal representation, including lawyers, evolved out of that
  • Precedent
    • Stare decisis (let the decision stand)
    • Not a singular code
      • but a collection of many outcomes
    • Evolved from "common knowledge" to collections of written decisions (1785), general known as "reports"
    • Usually determines outcomes, but here are other possibilities, and precendents sometimes conflict
    • The options
      • Accept the Precedent (perhaps even issue a summary judgment)
      • Modify the decision (perhaps based on a perceived change in norms
      • Distinguish the precedent from the current case
      • Overrule the precedent
  • The Law of Equity
    • Addresses inadequacies in common law
    • Enables gradations in decisions rather than binary judgments
      • based on conscience, fairness, and equity
    • the source of "injunctions" and "restraining orders"
      • preventative measures in addition to remedial ones
  • Statutory law (or legislation)
    • built on the actions of legislative bodies
    • Characteristics
      1. uniform policy that is broadly applied rather than discovered policy that will continue to be argued
      2. can anticipate problems rather than simply respond to them
      3. provide a measure of precision that is particularly important in criminal law
      4. systematically collected in books
      5. subject to interpretation
    • This last point is particularly important, as all law is fractal
      • an infinite regress of increasingly fine and self-similar decisions
      • http://foulger.info/davis/presentations/measuringFractalDecisionSpaces/index.htm

• The meaning of language is often an issue
• But so are issues of conscience, equity, and fairness
• Constitutional Law
  • A plan for the establishment and organization of government
  • A set of duties, responsibilities and powers
  • A set of rights and principles that are guaranteed
  • A "yardstick" against which the permissibility of actions can be measured
• Administrative Rules
  • including executive orders
  • Delegated powers to interpret the law within defined spheres
  • Administrative agencies
    • Set rules, often within a context that looks a lot like a court
    • Interstate Commerce Commission
    • FCC
    • Many others
• Each of these sources of law meets in the courts
  • facts versus law determines which courts
    • issues of fact go to trial courts
    • issues of law go to appellate courts

1. Trial Court
   • Decides issues of "fact"
   • Involves:
     • Plaintiffs
       • Complaints
         • Causes of Action
     • Defendants
       • Answers
     • Legal Representation
       • may involve itself in
         • Discovery
         • Pre-trial hearings
     • The court
       • Precedent
         • Judgment of the Court
           • Summary Judgment
           • Damages
           • Injunction
     • Examples: U.S. District Court, Courts of Limited Juristiction (Traffic court, Municipal Court), County and State Courts
2. Appellate Court
   • Review the law
   • Participants
     • Appellant (or Petitioner)
     • Respondent (or Appellee)
     • The Court
       • Legal Briefs
         • Precedent
         • Legal Arguments
         • Amici Curiae (Friends of the court) will sometimes add to the argument
       • Opinion of the Court
         • Majority Opinion
         • Concurring Opinions
         • Dissenting Opinions
     • Examples
       • State courts of Appeal and Supreme Courts
       • U.S. Court of Appeals
       • U.S. Supreme Court
         • Appellate court of last appeal
         • Writ of certiorari
         • Source of judicial review

• Zelezny's Streamlined Brief
  • Heading (Case name, court, year)
  • Facts: The essential facts that led to the conflict
  • Issue: The issues raised on appeal.
  • Decision: The decision and its rationale. What was decided? What is the logic of the decision? How does it balance the interests of the petitioner and respondent?
  • Rule of law: one sentence summary of the principle that should guide legal conduct

Readings Reports (due for Session 3):

1. Brief one of the decisions in Chapter 2 of Zelezny. I will assign different members of the class different decisions.
2. Bring in three questions based on the readings