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Freedom, human rights and social responsibilities — These are the foundations of the state, national, and international systems of laws that govern and protect the aspirations of all humanity. With this course in communications law and ethics, we begin a fascinating and challenging journey to examine what is, in effect, the world’s greatest experiment — which (according to Thomas Jefferson) we trust will end in establishing the fact that man may be governed by reason and truth. At this moment in human history, few would claim that the fact has been well established or that the experiment is near the end. As it turns out, being governed by reason and truth is not easy in practice. This brings us to the need for understanding of the complexity of law, of the structures and systems and principles of law that balance competing views and interests. We need to ask how we protect individual freedom of religion, speech and press while, at the same time, ensuring a socially responsible structure that sustains these systems. And so, we need an informed understanding of the professional, practical and social issues that rise from our attempts to balance rights and responsibilities in communications law. |
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Recognition of the inherent dignity, and of the equal and inalienable rights of all members of the human family, is the foundation of freedom, justice and peace in the world … 
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. 
That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety … That all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them… 1.1.2 How WE STUDY MEDIA LAW
Understanding civics, law, and human rights, is a responsibility of American citizenship.
As Americans, you have inherited a republic. It is your job to keep it.
Just as the law protects your rights, you are expected to stand up for freedom of religion, speech and press and to stand against tyranny, censorship and intolerance, at home and worldwide.
How we stand up for freedom, and how we reconcile our disagreements while acknowledging our doubts — as well as our debts to those who came before us — is the purpose of constitutional law.
Respectful scholarship
Democracy requires tolerance, and by the same token, universities are firmly based on respectful approaches to scholarship. This implies a positive attitude toward diversity of views or at least tolerance of rational differences honestly expressed.
However, respectful scholarship does not mean that we have to quietly tolerate hate speech or put up with intolerance of democracy itself. (This is a problem addressed by Karl Popper’s Paradox of Tolerance).
1.1.3 Critical thinking
Constitutional law changes with society over time — slowly, in many cases, yet arcing eventually towards justice.
Therefore, the foundation for any study of law and legal systems is critical thinking and careful judgement in evaluating facts, evidence, observations and arguments.
Benjamin Franklin
You will want to understand some of the basic elements of critical thinking, such as:
1. A lack of infallibility — We all need a dash of humility in the way we judge other people and their opinions. In a democracy, no one can win every argument and every election. As Benjamin Franklin said in 1787, urging adoption of US Constitution : “… I cannot help expressing a Wish, that every Member of the Convention, who may still have Objections to it, would with me on this Occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his Name to this instrument.”
2. Deductive reasoning – This is reasoning from a general rule (such as a Supreme Court decision) to a specific conclusion (such as how the rule should be applied in a particular case). In a common law system (such as the US, the UK and the Commonwealth Nations, among others) a court’s legal precedent is part of the law. The precedent-setting or “controlling” higher court cases are those that set the rules for similar cases in the lower courts.
Example — Sherlock Holmes uses deductive reasoning to solve his cases. Readers may remember the case of Silver Blaze, in which a dog did not bark when a crime took place. Holmes was able to deduce that since the dog did not bark, it probably knew the person who was committing the crime. This narrowed the field of suspects.
Reasoning by analogy. This is similar to deductive thinking, and just means that similar facts or principles or court decisions can help form a general rule that is likely to lead to similar conclusions. This is important when law students write briefs and cite cases to support a legal argument.
Example — When a civil lawsuit for libel is filed in any US court, the facts of that case are compared with standards set in the New York Times v. Sullivan case (1964).
3. Inductive reasoning – From specific to general — Lawyers and judges often use inductive reasoning when they analyze a set of specific cases to develop a general legal rule. The idea is to gather facts and then apply them in formulating a theory. However, it is a fallacy to generalize unless we have all available facts.
Example: If lower courts reach differing decisions concerning similar cases, a higher court may need to consider the specific facts and various philosophies of law (jurisprudence) and then create a new general rule.
4. Awareness of logical fallacies — Most students are exposed to logical fallacies in basic courses. Among these fallacies are: ad hominem attack, slippery slope, hasty generalization, straw man, smoke screen, post hoc ergo propter hoc, bandwagon, transfer, false dilemma , begging the question, testimonial, name calling, false authority, appeal to ignorance (in both the skeptic’s form and the true believer’s form), poisoning the well, non-sequitur, loaded language, plain folk, appeal to the people, appeal to fear, appeal to guilt, guilt by association.
Another is the inductive fallacy, in which specific observations may be used to justify a theory that doesn’t take all facts into account.
Example: If one sees only black crows, one may suspect that all crows are black. (In fact, there are white crows).
5. Epistemology — How do we know what we know? Epistemological issues and the reliability of information sources depend on context and trust. We need to understand what is meant by legal authority, black letter law, stare decisis and the social influence of major court opinions. We also need to be aware of social privilege as a potential source of bias in human rights cases.
In studying law, we have primary sources of law (Common, Constitutional, Court decisions, Federal and state legislation, and Federal and State regulations). We also have a host of reliable secondary sources, especially law reviews and commentaries on law by legal experts (which are available through the library database, especially Nexis.)
We need to be careful about informal tertiary sources such as news accounts, blogs and the results of random searches on the web, which may or may not be accurate or germane to the issues we are approaching.
READING
Wikipedia article on Critical Thinking
Critical thinking in the law by Professors Courtney Lee and Tim Naccarato of the University of the Pacific.
The definition of the word “critical” is exercising or involving careful judgment or judicious evaluation.” In this context, law students must learn to question and analyze what they hear, what they see, what they read, what they feel, and what they think. First impressions are often wrong and frequently change after more thoughtful analysis.