Communication and Law

Multidisciplinary Approaches to Research

Amy Reynolds, Brooke Barnett, Amy Reynolds, Brooke Barnett

• Editorial: Routledge
• Año: 2006
• ISBN:
  9781135613211
• Edición: 1
• Categoría: Languages & Linguistics
• Categoría: Communication Studies

Communication and Law brings together scholars from law and communication to talk both generally and specifically about the theoretical and methodological approaches one can use to study the First Amendment and general communication law issues. The volume is intended to help graduate students and scholars at all skill levels think about new approaches to questions about communication law by offering a survey of the multidisciplinary work that is now available. It is designed to challenge the conventional notion that traditional legal research and social science methodological approaches are mutually exclusive enterprises.This book has been developed for researchers working in mass communication and law and will be appropriate for graduate students and scholars. It will also appeal to those in psychology, political science, and other areas who are interested in exploring questions of law in their research.

Part I
THEORETICAL PERSPECTIVES AND APPROACHES

Chapter 1
Charting the Future of Interdisciplinary Scholarship in Communication and Law

Jeremy Cohen Penn State University
Timothy Gleason University of Oregon

The United States is engaged in what the president refers to as “a war on terrorism,” as we pause from our work as university and journalism school administrators to reflect on freedom of expression, on how we come to understand it as scholars, and on what the work of social research in communication and law may hold for the future. As in other times of military and social conflict, there are implications for the flow and veracity of information, for the ability of the government to hold and interrogate prisoners outside of the public’s view, for the efficacy of public calls to question official policy, for the ways in which journalists may gather information and report it to citizens, and for the privacy of individuals. For much of the last half of the 20th century, there was a fragile consensus about the value of freedom of expression in a democratic society. Nonetheless, although most Americans say they favor our constitutional freedoms of speech, Stanford law professor Kathleen Sullivan (1994) noted that many are willing to roll back or trade those rights to achieve other goals. The freedoms of expression take on particular salience when ideologies clash. There will be no lack of work for the foreseeable future for those interested in the interactions of communication and law.

We shared our program of interdisciplinary approaches to communication and law more than two decades ago with the publication of Social Research in Communication and Law (Cohen & Gleason, 1990), in which we offered an invitation to others to join us. They felt like halcyon days.

For Gleason, historical examination of the watchdog concept (1990), of libel law (1988, 1993), and of the Fairness Doctrine (1991), and for Cohen, third-person effects and social science studies of libel (1987, 1988, 1989, 1990), cameras in the courtroom (1982), First Amendment jurisprudence (1989), and communication and law (1986) suggested inroads toward deeper understanding of the links among expression, democracy, and communication behaviors. The Association for Education in Journalism and Mass Communication held a panel discussion of social science approaches to media law—its first—that included many of the authors represented in the current volume.

It was our belief then, and it remains so now, that communication scholars have the opportunity to add greatly to the understanding of freedom of expression by developing lines of research that examine free speech issues “from the perspective of the communication scholar, not in competition with the legal scholar, but in recognition of the objectives of communication research” (Cohen & Gleason, 1990, p. 8). We noted then that to do so added the need for increased scholarship. Contributors would need expertise in multiple disciplines. Thorough familiarity with law and expertise in communication would be the minimum credential before the work could be held up to the peer review of disciplinary scholars in law or colleagues in communication. To do less would risk confusion, the formulation of unsound theory, and the creation of unrealistic expectations. We tried to make it clear that, in the end, law is not science. Legal and scientific theory are not the same. The work of the communication and law scholar requires deep disciplinary awareness of the distinctions between these sometimes conflicting ways of knowing and framing human discourse.

We set out in 1990 to describe a framework for communication and law. We identified three different issues ripe for research:

• The theoretical and methodological elements that distinguish among law, freedom of expression, and communication, and the conceptual approaches needed to bridge these disciplines.
• The validation or (invalidation) of assumptions about communication embedded in law.
• The use of social research to identify and examine the impact of law on communication.

Today, the task feels particularly daunting. We do not have a crystal ball. We cannot predict the work of future communication and law scholarship. Yet little at present suggests the emergence of unified or cohesive communication and law research programs. By and large, studies have remained ad hoc research ventures that provide intriguing glimpses into law, but that have yet to bring a larger field into focus. No communication graduate program has yet established itself as a leader in the manner that some have developed deserved reputations for work in First Amendment law, children and media, or the study of journalism institutions.

It may be that part of what makes communication and law so difficult as a field is the fundamental difference between science and law. Recognizing that the field of communication includes a wide range of approaches including but not limited to social science, a distinction nonetheless remains between the purposes of law and communication.

Law is a system of regulation. Its purpose is to set, interpret, and enforce rules of conduct by which people will live—or, at least, be held accountable. Communication as an academic discipline, whether the scholarship of critical theorists, historians, or social scientists, is a search for understanding of individuals, events, institutions, and other phenomena. Law is not science. Oliver Wendell Holmes (1881) made this clear in the opening paragraph of The Common Law when he wrote, “The life of the law has not been logic; it has been experience” (p. 1). Holmes understood that the “felt necessities of the time, the prevalent moral and political theories, intuitions of the public . . . even the prejudices which judges share with their fellow men” (p. 1) had more to do with judicial decision making than did science. Science, of course, is not always a desirable basis for law. The “best” science of the first half of the 19th century viewed Black men and women as inferior. It was this scientific view that generated the legal logic the Supreme Court relied on in Dred Scott (Scott v. Sandford, 1857), one of the most shameful cases in American history. If Blacks were inferior to Whites, then the subtleties of citizenship were not relevant. Inferior races (the accepted scientific view at the time) could not be citizens. The citizenship question before the Court was moot.

Science has never been an easy fit for the courts, a point Hastings College law professor David Fairman (2004) illuminated in his history of the Supreme Court’s “200-year struggle” to integrate science and law. Science remains a hit-and-miss proposition for the courts, as Chief Justice William Rehnquist’s opinion for the Supreme Court in City of Renton v. Playtime Theaters, Inc. (1986) demonstrates. The case rested in part on an empirical question. Did the presence of adult entertainment in Renton, Washington, lead to increased crime, which was the rationale for the ordinance under consideration? “The First Amendment does not require a city . . . to conduct new studies or produce evidence independent of that already generated by other cities so long as whatever evidence the city relies upon is reasonably believed to be relevant,” Rehnquist wrote (City of Renton v. Playtime Theaters, Inc., 1986, p. 51). In other words, the courts may accept the reasonable views of legislators over scientific evidence regardless of whether a question may be subject to empirical verification. The felt necessities of the time, as well as empirical evidence, are at the heart of legal decision making. Understanding how communication contributes to the felt necessities of the public, and the ways in which those necessities interact with law, is a task for communication and law scholars.

In City of Renton, the Court found little use for an empirically produced factual basis. Are the courts ready for the even more difficult lead of crafting doctrine around social science discovery? Bunker and Perry (2004) concluded that, although interdisciplinary legal scholarship is on the rise in areas such as law and economics, “the [o]ne area of legal thought in which the social scientific world view has gained little traction . . . is free speech theory and doctrine” (p. 3).

We do not propose applied research as the single justification for communication and law. Nonetheless, it should give each of us pause to reconsider the larger picture and to ask: What is the purpose of the research at hand? How does it contribute to freedom of expression and democratic practice? Are we building a body of work as members of a community of scholars that will make a difference in the formulation and application of law?

On a more positive note, the following chapters and studies indicate constructive growth. Interest in communication and law has increased. Research scholars are regularly working beyond the limits of the single discipline approaches of law, history, psychology, and communication to develop richly textured portraits of the environments—legal, social, and cognitive, among others—that influence and are influenced by the regulation, practices, and philosophies of expression. Psychology and law courses, and, on occasion, communication and law are now widely available to undergraduate as well as graduate students.

For scholars interested in understanding freedom of expression, the present offers a profusion of challenges sufficient to establish the direction of a body of work for many years to come. The work will be important if it holds implications for citizens and others who feel called on to engage in the democratic process through the First Amendment freedoms that underlie the American constitutional democracy.

There appeared to be strong protection for journalists claiming limited constitutional, statutory, or administrative rights to conceal the identity of their sources when we began teaching media law. Today, several journalists are facing prison sentences for refusing to reveal the names of confidential sources. As scholars, we would like to know: What has changed? Is there more than a simple correlation between the public’s decreasing trust in news organizations and prosecutorial zeal? Does the public think about freedom of expression differently now than during other times of national crisis?

Today, the contours of the Patriot Act and the architecture of information technology are altering the boundaries of privacy and shrinking the zone of individual privacy, once taken for granted. Communication and law scholars will contribute to the policy realms of law if full-fledged programs of scholarship are mounted to develop an understanding of the phenomena. Likewise, legal scholars such as Stanford University law professor Lawrence Lessig (2004) are asking new questions about what it means to own information. Of course more familiar questions remain that will benefit from careful interdisciplinary study. Communication effects, media ownership and distribution, intellectual ownership, privacy, and national secrecy are among a multitude of phenomena subject to law and regulation, and to deeper understanding through communication scholarship.

Legal scholar Frederick Schauer (2004) argued that the definition of the First Amendment cannot be explained by examining only the law. Its limits, he wrote, “turn out to be a function of a complex and seemingly serendipitous array of factors that cannot be (or at least have not been) reduced to or explained by legal doctrine or by the background philosophical ideas and ideals of the First Amendment” (Schauer, 2004, p. 1768).

Lacking a crystal ball, we will nonetheless hazard a prediction—the task the editors of this volume have asked us to perform. The work of communication and law scholarship will only find influence beyond the laboratory and library when the protocols of our studies exchange ad hoc scholarship for long-term programs of study. The presence in the journals of unrelated research developed because scholars followed esoteric personal interests will not generate enlightened consideration among others. It is time to follow our colleagues in other social, biological, and physical sciences, and to identify realms of study that will produce useful understanding. It is time to focus our limited resources on questions for which the answers can make a difference. To do so, we have to adopt a new sense of what it means to be collegial, and we have to work pragmatically, as well as with an interdisciplinary vision.

REFERENCES

Bunker, M. D., & Perry, D. K. (2004). Standing at the crossroads: Social science, human agency and free speech law. Communication Law & Policy, 9, 1–23.

City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 50 (1986).

Cohen, J. (1982). Cameras in the courtroom and due process: A proposal for a qualitative difference test. University of Washington Law Review, 57, 277–291.

Cohen, J. (1986). Degrees of freedom: Parameters of communication law research. Communication and the Law, 8, 11–21.

Cohen, J. (1989). Congress shall make no law: Oliver Wendell Holmes, the First Amendment, and judicial decision making. Ames, IA: Iowa State University Press.

Cohen, J., & Gleason, T. W. (1990). Social research in communication and law. Newbury Park, CA: Sage.

Cohen, J., & Gunther, A. (1987). Libel as communication phenomena. Communication and the Law, 9, 9–30.

Cohen, J., Mutz, D., Nass, C., & Mason, L. (1989). Testing some notions of the fact/opinion distinction in libel. Journalism Quarterly, 66, 11–17, 247.

Cohen, J., Mutz, D., Price, V., & Gunther, A. (1988). The impact of defamation on reader perceptions: An experiment on third-person effects. Public Opinion Quarterly, 52, 167–173.

Cohen J., & Spears, S. (1990). Newtonian communication: Shaking the libel tree for empirical damages. Journalism Quarterly, 67, 51–59.

Fairman, D. L. (2004). Laboratory of justice: The Supreme Court’s 200-year struggle to integrate science and the law. New York: Times Books.

Gleason, T. W. (1988). The fact/opinion distinction in libel. Hastings Journal of Communications and Entertainment Law, 10, 763.

Gleason, T. W. (1990). The watchdog concept: The press and the courts in nineteenth century America. Ames, IA: Iowa State University Press.

Gleason, T. W. (1991). Killing “gnats with a sledgehammer”? The fairness doctrine and KAYE broadcasters. Journalism Quarterly, 68, 805–813.

Gleason, T. W. (1993). The libel climate in the late 19th century: A survey of libel litigation: 1884–1899. Journalism Quarterly, 70, 893–906.

Holmes, O. W. (1881). The common law. Boston: Little, Brown.

Lessig, L. (2004). Free culture: How big media uses technology and the law to lock down culture and control creativity. New York: Penguin.

Schauer, F. (2004). The boundaries of the First Amendment: A preliminary exploration of constitutional salience. Harvard Law Review, 117, 1765–1809.

Scott v. Sandford, 60 U.S. 393 (1857).

Sullivan, K. M. (1994). Free speech wars. Southern Methodist University Law Review, 48, 203–214.

Chapter 2
Method in Our Madness: Legal Methodology in Communications Law Research

Fred H. Cate Indiana University

As a law professor specializing in communications law, I often f...