Publications and Presentations
Major Principles of Media Law. Boston, MA: Cengage Learning. Co-authored with Belmas, G. and Overbeck, W. (2017).
This comprehensive and current book covers the most recent developments in communications law through the end of the Supreme Court’s term. Widely praised for its clarity and conciseness, the book accurately summarizes complex legal concepts, featuring comprehensive coverage of topics critical to the study of media law, with both current and historical cases in each chapter that illustrates the concepts and laws being discussed.
Privileging the Press: Confidential Sources, Journalism Ethics and the First Amendment. New York, NY: LFB Scholarly Publishers, LLC. (2011/2013).
Abstract: In the last 10 years, American journalists have faced unprecedented legal problems in protecting confidential sources. In this book, a media law scholar and former journalist examines how subpoenas for newsgathering information have raised both old and new legal and ethical problems, at a time when journalistic independence and authority have come under attack by profound economic and social changes. The research explores the ethical and legal evolution of the privilege drawing on research into cases in the 19th century, the First Amendment principle that emerged in the middle of the 20th century, the public policy implications debated in congressional hearings in the 1970s, and the rise and fall of common law protections in the federal courts between 1972 and 2003. The author also interviews key journalists and media lawyers in recent high-profile privilege cases. In tracing the development of the journalist's privilege from colonial times to the present, the author finds a dynamic interaction among journalism ethics, free-press theory and legal jurisprudence that supports qualified legal protections for journalists.
Reviewed in Journalism and Mass Communication Quarterly:
“This comprehensive litany of triumphs and failures ... pull(s) together the many threads that make up the stormy history of the journalists’ privilege into one compact volume. If I were still working at a law firm, I’d make it required reading for any new associates who want to practice media law.”
Cited in the New York Times
Discussed here in "Journalist Delves into the Use of Unamed Sources in New Book"
"The Emerging Uses of Ethics in Journalist’s Privilege Law," in Bastiaan Vanacker, Ethics for a Digital Age, New York, NY: Peter Lang. (2015).
Abstract: The digital revolution in mass communication is creating new approaches to addressing legal issues for journalists — including increasing judicial attention to the appropriate role of professional ethics in deciding questions such as who is a journalist and what is journalism. Can someone who creates websites dedicated to attacking a person’s personal and professional life be considered a journalist? When do filmmakers and writers cross the line between independent journalism and propaganda? When does the medium of communication dictate greater legal deference to writers and editors as traditional forums of journalism? In three recent court cases, United States judges rejected claims by individuals seeking legal protections as journalists, largely based on the individuals’ failures to demonstrate they acted like independent reporters who adhered to traditional norms of ethical journalistic practice. In exploring these cases as well as judicial precedents, common law, legislative histories and journalism ethics literature, this research raises concerns about and offers proposals for the emerging uses of journalism ethical standards in press freedom cases in the digital era.
Freedom of the Press and Journalism Ethics in the Internet Era, in Minette E. Drumright (editor), Ethical Issues in Communication Professions: New Agendas in Communication, New York: Routledge. (2013.)
Abstract: In the midst of a technological and economic revolution sparked by the Internet, journalism is undergoing a legal and ethical revolution as well. Ethics scholars need to examine how journalism’s core principles and ideals can remain relevant and viable on the Internet even as its gate-keeping and agenda setting roles increasingly diminish in a crowded Internet marketplace. By extension, ethical principles and practices for online journalism may help preserve and possibly extend legal protections for journalism that embody the public-information and checking-value theories of the First Amendment’s press clause.
Reviewed in the Journal of Mass Media Ethics:
"Through the lens of free-press theory, Shepard captures the competitive and complex tension between traditional (print) journalism's diminishing 'gatekeeping and agenda-setting roles,' and online journalism's largely unruly, unregulated blogosphere ... For those lacking a background in media (journalism) law, this chapter is a must read."
Online Legalities Columns
"Libel lawsuits targeting vile conspiracy theories," Online Legalities, California Publisher, Spring 2019.
"Prior restraint still makes important stories a hassle," Online Legalities, California Publisher, Winter 2019.
"Attack a journalist, you'll do time, federal bill says," Online Legalities, California Publisher, Fall 2018.
"Politicians can't block critics on their social media accounts," Online Legalities, California Publisher, Summer 2018.
"Grudge shuts a news site," Online Legalities, California Publisher, Spring 2018.
"Decision shines new light on public officials' emails," Online Legalities, California Publisher, Winter 2018.
"Russian influence underscores need for sunshine on digital political advertising," Online Legalities, California Publisher, Fall 2017.
"Leakers take big risks to get Trump-Russia news to public," Online Legalities, California Publisher, Summer 2017.
“Anti-Trump tirade sparks debate over campus free speech,” Online Legalities, California Publisher, Spring 2017.
“Perilous times for press freedom in Trump’s post-truth era,” Online Legalities, California Publisher, Winter 2017.
“Journalist Jason Leopold lives and breathes by FOIA,” Online Legalities, California Publisher, Fall 2016.
"What effect could Donald Trump have on libel laws?" Online Legalities, California Publisher, Summer 2016.
"Too soon to judge impact of Hulk Hogan's payout," Online Legalities, California Publisher, Spring 2016.
"Ads in editorial have always been a risk," Online Legalities, California Publisher, Winter 2016.
"A lesson in fair use and dancing babies," Online Legalities, California Publisher, Fall 2015.
"'Anti-SLAPP' laws come under attack,” Online Legalities, California Publisher, Summer 2015.
“Charlie Hebdo adds global slant to free speech,” Online Legalities, California Publisher, Spring 2015.
“Hacking scandals highlight digital privacy problems,” Online Legalities, California Publisher, Winter 2015.
“Speech-threat case goes to the high court,” Online Legalities, California Publisher, Fall 2014.
“Doing time for protecting sources?” Online Legalities, California Publisher, Summer 2014.
Peer-Reviewed Journal and
Law Review Articles
Shepard, J.M. (2018). "The First Amendment and Mandatory Condom Laws: Rethinking the 'Porn Exception' in Strict Scrutiny, Content Neutrality and Secondary Effects Analysis," Nevada Law Journal.
Abstract: Public health advocates in California have campaigned for new laws for the last 15 years requiring the use of condoms in the production of pornography to reduce the spread of HIV and other sexually transmitted infections. This article examines the efficacy and constitutionality of mandatory condom laws and critiques Vivid v. Fielding, the Ninth Circuit of Appeals decision striking down parts of Los Angeles’ regulatory scheme but upholding the mandatory condom requirement. After exploring jurisprudence related to pornography production, including the conduct/expression dichotomy in First Amendment law, the strict and intermediate scrutiny standards of First Amendment analysis, the contorted secondary effects doctrine, the perplexing nature of the pornography/prostitution distinction by the California Supreme Court decision People v. Freeman, and the expressive elements unique to the subgenre of “bareback” pornography, the Article argues for the reassessment of the “pornography exception” to strict scrutiny analysis for content-based regulations.
Shepard, J.M. and Culver, K.B. (2018). "Culture Wars on Campus: Academic Freedom, the First Amendment and Partisan Outrage in Polarized Times," San Diego Law Review.
Abstract: After a California community college professor called the election of President Donald Trump an “act of terrorism” in her classroom the week after the vote, a student-recorded viral video sparked a national conservative media firestorm. Critics said the professor should be fired for outrageous liberal bias, while supporters defended her comments as being protected by academic freedom and the First Amendment. The student, meanwhile, was suspended for his unauthorized recording while defenders decried his punishment as evidence of anti-conservative discrimination and harassment. By examining tensions between faculty and student speech rights, the use of technologies to take ideological disagreements viral through partisan media, and the role of colleges and universities in culture wars, this research finds deep divisions in views of rights and responsibilities of faculty, students, and institutions in campus free-expression controversies.
Shepard, J.M. and Belmas, G.I. (2012). "Anonymity, Disclosure and First Amendment Balancing in the Internet Era: Developments in Libel, Copyright and Election Speech," Yale Journal of Law and Technology.
Abstract: The Supreme Court has long protected anonymity for speakers and writers under the First Amendment. The Internet enables anonymity for individuals who post writings, download music, and participate in political discussion. However, this poses a challenge for plaintiffs who want to sue anonymous speakers for libel, copyright infringement, or election speech. This paper evaluates current legal developments in these areas and makes recommendations about how the law should deal with these different but related areas of anonymous speech.
Cited and quoted by Reuters in "Anonymous online reviews may not be so anonymous"
Shepard, J.M. (2011). "Campaigning as the Press: Citizens United and the Problems of Press Exemptions in Law," Nexus Journal of Law and Policy.
Abstract: Was the documentary film Hillary: The Movie a piece of advocacy journalism or long-form political campaign advertisement? If it is the former, First Amendment jurisprudence largely prohibits the government from placing restrictions on its content or availability. If it is the latter, the United States Congress has long argued that important government interests allow for prior restraints and a myriad of content requirements, such as disclosure and disclaimer rules. This article examines whether the “media exemption” in campaign finance laws can be narrowed or expanded in particular ways that do not violate free press principles but that support the government interests in regulating money in politics. In assessing the definitional problems inherent in the application of the media exemption, this research assesses whether journalist’s privilege law might provide a framework for resolving media-exemption problems in campaign-finance law. The research concludes that these privilege tests provide some guidance in evaluating what should qualify for the press exemption, especially now that the media exemption will only determine whether disclosure and disclaimer rules apply to speakers.
Belmas, G.I. and Shepard, J.M. (2010). "Speaking From the Bench, Judicial Campaigns, Judges’ Speech and the First Amendment," Drake Law Review, 58(3): 709-736.
Abstract: Caperton v. A.T. Massey Coal, Inc. (129 S. Ct. 2252, 2009) raised a host of questions about when and if judges must recuse themselves for conflicts of interest based on campaign donations. In addition to the recusal issue, the case raises First Amendment questions. One possible strength of the Caperton holding is that it provides at least some remedy for egregious influence of campaign spending without real First Amendment problems. The First Amendment does influence the Supreme Court’s decisions regarding campaign expenditures and communications; in Citizens United v. Federal Election Commission (2010 U.S. LEXIS 766, Jan. 21, 2010), the Court struck down two precedents that limit spending on “electioneering communications” on First Amendment grounds. We offer a multi-element model that takes into account both of these decisions in an attempt to ensure that the public receives election information from both judges and campaign donors while still preserving the integrity of the judiciary through the option of recusal.
Cited and quoted by Eighth Circuit Court of Appeals in Wersal v. Sexton, 674 F.3d 1010 (2012).
Shepard, J.M. (2010). “Bloggers After the Shield: Defining Journalism in Privilege Law,” Journal of Media Law & Ethics, 1(3/4): 186-216.
Abstract: Josh Wolf claims to be the longest jailed journalist in American history after courts rejected his journalist’s privilege claims and sentenced him to 226 days in prison. But was the blogger really a journalist entitled to invoke privilege protections? Academics, journalists, lawyers, judges and members of Congress have struggled to articulate legal definitions of journalism as bloggers increasingly seek newsgathering protections. This article evaluates controversies in state statutory interpretation, federal shield law proposals and federal common-law development. The article argues that the analytical evolution in federal and state case law supports expanding privilege protection to bloggers whose purposes, processes and products are similar to professional journalists’ historical practices and values.
Shepard, J.M. (2009). “After the First Amendment Fails: The Newsmen’s Privilege Hearings of the 1970s,” Communication Law and Policy, 14(3) , pp 373-410.
Abstract: This article explores the debates over eighty-six “newsmen’s privilege” bills introduced in the U.S. House of Representatives between 1972 and 1975 in the immediate aftermath of the U.S. Supreme Court’s ruling in Branzburg v. Hayes. The article examines archival files and congressional records of this largely ignored slice of journalist’s privilege history and identities the primary policy differences, the motives and perspectives of key advocates, and reasons for a bill’s failure to become law. This research dissects the policy arguments for and against a privilege and examines in detail the four major areas of policy disputes: the range of protections from so-called absolutist to qualified bills, the definitional problem of who is a journalist, protection of only confidential information or all newsgathering material, and whether a federal privilege statute should “pre-empt” state laws. In evaluating the policy and constitutional arguments raised and debated in Congress, this research also provides historical context to contemporary debates over a federal journalist’s shield law.
Peer-Reviewed Conference Papers and Presentations
"Regulating the Adult Film Industry After Prop 60: Mandatory Condom Laws and First Amendment Scrutiny," Presented at 2018 Arts, Humanities, Social Sciences and Education Conference, Hawaii University International Conference, Honolulu, HI, January 2018.
"Classrooms Gone Viral: Faculty, Students and Campus Expression in a Polarized Age." Presented at 2017 Faculty Conference on Academic Freedom, Foundation for Individual Rights in Education, Dallas, TX., October 2017.
"Government Surveillance and Cultural Dissenters: The FBI Files on ONE Magazine and its Editors." Presented at the Joint National Conference of the Popular Culture Association and American Culture Association, Chicago, Ill., March 2014.
"The Agendas of America’s First Gay Journalists: A Content Analysis of ONE Magazine, 1953-1958." Presented at the Joint Journalism and Communications History Conference, co-sponsored by the American Journalism Historians Association and the History Division of the Association for Education in Journalism and Mass Communication, New York, NY, March 2014.
"Mandatory Condom Laws and Pornography Production: Assessing New Legal and Political Efforts to Regulate Sexual Expression in Response to the AIDS Crisis." Presented to the Gay, Lesbian and Queer Studies Area at the National Conference of the Popular Culture Association and the American Culture Association, Washington, DC, March 2013.
"The Emerging Uses of Ethical Principles in Journalist’s Privilege Law." Presented at the International Symposium on Digital Ethics, The Center for Digital Ethics & Policy, Loyola University Chicago, Chicago, Ill., October 2012.
"The First Amendment and the Dissenter: Communism, Homosexuality and Expressive Freedom." Presented at Radically Gay: The Life & Visionary Legacy of Harry Hay Conference, The Center for Lesbian & Gay Studies at the City University of New York and the Harry Hay Centennial Committee, New York, NY, September 2012.
"The Anonymous Speech Doctrine in the Internet Era: Developments in Libel, Copyright, and Election Speech." Presented to the Law and Policy Division at the Annual Conference of the Association for Education in Journalism and Mass Communication, Chicago, Ill., August 2012.
"The Emergence of Gay Male Sexuality in 1950s American Media." Presented to the Gay, Lesbian and Queer Studies Area at the National Conference of the Popular Culture Association and the American Culture Association, Boston, MA, April 2012.
"Campaigning as the Press: Citizens United and the Problems of Press Exemptions in Law." Presented at Chapman University School of Law Symposium, Orange, CA, October 2010.
"The First Amendment’s Central Role in the American Gay Rights Movement." Presented at the Annual Conference of the American Journalism Historians Association, Tuscon, AZ, October 2010.
"The Transformation of the First Amendment’s Anonymous Speech Doctrine in the Internet Era." Presented at New Media Theory: How Far Have We Travelled? sponsored by Texas Tech University and the Communications Technology Division of the Association for Education in Journalism and Mass Communication, Lubbock, TX, April 2010.
"Legalizing a Professional Ethic: The Development of the Journalist’s Privilege in Early American Legal and Journalism History." Presented at Joint Journalism Historians Meeting of the American Journalism Historians Association and the History Division of the Association for Education in Journalism and Mass Communication, New York, NY, March 2010.
"Journalistic Duty to Protect News Sources in Early American History." Presented at Communications Crossroads: A Multidisciplinary Graduate Student Conference, School of Journalism and Mass Communication, University of Wisconsin-Madison, Madison, WI, April 2009.
"The Beginning of the End? The Federal Reporter’s Privilege Five Years After McKevitt v. Pallasch." Presented to the Law and Policy Division at the Annual Conference of Association for Education in Journalism and Mass Communication, Chicago. IL, August 2008.
"Alexander Meiklejohn’s First Amendment and Enemy Media in the War on Terror." Presented at Communication Crossroads: A Multidisciplinary Graduate Student Conference, School of Journalism and Mass Communication, University of Wisconsin-Madison, Madison, WI, April 2008.
"After the First Amendment Fails: The Newsmen’s Privilege Hearings of the 1970s. Presented to the Law and Policy Division at the Southeast Colloquium of the Association for Education in Journalism and Mass Communication, Auburn, AL, March 2008.
"Terrorism Over the Airwaves? Satellite Television and the First Amendment in the War on Terror." Presented to the Law and Policy Division at the Annual Conference of the Association for Education in Journalism and Mass Communication, Washington DC, August 2007.
"Invoking Privilege Since Branzburg: Are Bloggers Like Other Non-Traditional Journalists?" Presented to the Law and Policy Division at the Annual Conference of the Association for Education in Journalism and Mass Communication, San Francisco, CA, 2006. Won outstanding student paper honors.
Invited Research Papers, Panels and Presentations
"Media Law Update, 2018 – First Amendment Freedoms in the First Year of Donald Trump’s Presidency," Journalism Association of Community Colleges Faculty Midwinter Conference, Cambria, CA, February 2018.
"Free Speech and Inclusivity on College Campuses," Osher Lifelong Learning Institute Eclectic Lecture Series, Cal State Fullerton, Fullerton, CA., April 2017.
"The Responsibility & Challenge of Truth: Fact, Fiction and News," panel created and moderated at the “Truth, Trust & the Future of Journalism,” Conference, Center for Journalism Ethics, School of Journalism and Mass Communication, University of Wisconsin-Madison, Madison, WI.
Shepard, J.M. (February 2017). “Involving Students in Free Speech,” Faculty Conference on Free Speech and Open Inquiry, The Institute of Humane Studies and the Federalist Society, Chapman University, Orange, CA.
"Abolishing the Speech Code: Lessons in First Amendment Activism From Don Downs," Free Speech on Campus: Old Challenges, New Threats, Symposium in Honor of Don Downs, The Center for Liberal Democracy and the University of Wisconsin-Madison Department of Political Science, Madison, WI., May 2016.
"The Ethics of Investigating Sport," created and moderated panel at Fair or Foul? Ethics and Sports Journalism, the Seventh Annual Conference of the Wisconsin Center for Journalism Ethics at the University of Wisconsin-Madison School of Journalism and Mass Communication, Madison, WI, April 2015.
"The Death of Personal Privacy," Cal State Fullerton Emeriti Faculty Association Lecture Series, Fullerton, CA, January 2015.
"Motives and Risks: Case Studies of Leak Prosecutions During the Obama Presidency." Presented on panel titled Whistleblowing in Government as Free Expression: Are Government Whistleblowers Traitors, Heroes, or Loyal Employees Trying to Do the Right Thing? sponsored by the Public Relations Division and Mass Communication and Society Division, Annual Conference of the Association for Education in Journalism and Mass Communication, Montreal, Canada, August 2014.
"Protecting Sources and Data in a Surveillance Environment." Created and moderated panel at "Surveillance, Security and Journalism Ethics," the Sixth Annual Conference of the Wisconsin Center for Journalism Ethics at the University of Wisconsin-Madison School of Journalism and Mass Communication, Madison, WI, May 2014.
"Freedom of the Press and Journalism Ethics in the Internet Age." Presented at the New Agendas Project on Ethics in Communications Professions Conference, University of Texas-Austin, Austin, TX, March 2012.
"Should the “Press Exemption” in Campaign Finance Law Protect the Colbert Report and Citizens United?" Presented to the Law and Policy Division panel titled How Much Influence Should Corporations Have on Political Campaigns?: The Effects of the Supreme Court's Ruling in Citizens United v. Federal Elections Commission Case, at the Annual Conference of the Association for Education in Journalism and Mass Communication, St. Louis, MO, August 2011.
"Student Open Records Audit as a Teaching Tool." Presented to the Law and Policy Division panel titled "Student Open Records Audit as a Teaching Tool," at the Annual Conference of the Association for Education in Journalism and Mass Communication, St. Louis, MO, August 2011.
"The Post Office, the Gay Press, and the First Amendment." Presented to the Cultural and Critical Studies Division and the Gay, Lesbian, Bisexual and Transgender Interest Groups panel titled “Fringes and Fragments: The Impact of Technology on Traditionally Marginalized Groups,” at the Annual Conference of the Association for Education in Journalism and Mass Communication, St. Louis, MO, August 2011.
"The "Ick Factor" and the TV Taboo of the Gay Male Kiss." Presented to the Religion and Media and Gay, Lesbian, Bisexual and Transgender Interest Groups at the Annual Conference of the Association for Education in Journalism and Mass Communication, Denver, CO., August 2010.
Selected Other Publications
Shepard, J.M. “Book Review Essay: Academic Freedom and Recent Campus Free Expression Controversies,” Journalism and Mass Communication Educator, 73:1, March 2018.
Shepard, J.M. Book review of First Amendment Institutions by Paul Horwitz, Journalism Educator, Fall 2014.
Belmas, G.I., and Shepard, J.M. “Advocates await next big scandal,” Gateway Journalism Review, November 2013.
Shepard, J.M. Book review of How to Be Gay by Mark Halperin, Journalism Educator, Fall 2013.
Shepard, J.M. Book review of The Handbook of Internet Studies by Mia Consalvo and Charles Ess, Journalism Educator, Fall 2012.
Contributing Author and Editor, “Newsgatherers Privilege,” Chapter 7 of Major Principles of Media Law (Genelle Belmas and Wayne Overbeck, Wadsworth Publishing, 2012 ed.).
Shepard, J.M. Contributing Author, “Matt Drudge,” American Media History (Tony R. Fellow, Wadsworth Publishing, 3rd edition, 2012).
Shepard, J.M. Book review of Journalism Next by Mark Briggs and The Digital Journalist’s Handbook by Mark S. Luckie, Journalism Educator, Fall 2010.
Shepard, J.M. “Drudge Report.” Encyclopedia of American Journalism History (Stephen Vaughn, ed., Routledge, 2007).