Constitutional Scholars Explain Why SOPA & PROTECT IP Do Not Pass First Amendment Scrutiny

Free Speech

from the good-for-them dept

We had already mentioned that one of the foremost Constitutional scholars around, Laurence Tribe, had come out against Congress’s attempts to modify copyright law through SOPA. Some complained that he didn’t get into specifics. However, he’s now sent a letter detailing the problems in the bill (pdf) and why it violates the First Amendment. There are many, many reasons, with lots of details and citations, but here’s just an example:

The notice-and-termination procedure of Section 103(a) runs afoul of the ?prior restraint? doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being ?dedicated to theft of U.S. property? ? even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. The Supreme Court has made clear that ?only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression [and] only a procedure requiring a judicial determination suffices to impose a valid final restraint.? Freedman v. Maryland, 380 U.S. 51, 58 (1965). ?[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.? Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976).

Tribe also points out the deficiencies in his “friend” Floyd Abrams’ analysis of the First Amendment issues here:

However, I part company with Mr. Abrams on this issue. I believe his letter provides an excellent explanation of why existing law, including the Digital Millennium Copyright Act, is on the whole consistent with the First Amendment, but I do not believe his letter adequately analyzes or even meaningfully confronts the sweeping changes that SOPA would enact. Indeed, Mr. Abrams ultimately acknowledges that the remedies under SOPA may result in ?the blockage of non-infringing or protected content.? (Letter of Nov. 7, 2011 from Floyd Abrams to Hon. Lamar Smith, at 12 (emphasis added).) He acknowledges that seizure powers under the copyright law must be exercised with ?due regard to First Amendment considerations? (p. 4) and that ?[t]he Internet is one of the greatest tools of freedom in the history of the world.? (p. 2) He also recognizes that ?[i]t is a fundamental principle of First Amendment jurisprudence that government restrictions on speech should be narrowly tailored to avoid unnecessarily burdening protected speech.? (p. 10).

These concessions go to the heart of the constitutional defect evident on the face of SOPA. Although the problems of online copyright and trademark infringement are genuine, SOPA is an extreme measure that is not narrowly tailored to governmental interests. It is a blunderbuss rather than a properly limited response, and its stiff penalties would significantly endanger legitimate websites and services. Its constitutional defects are not marginal ones that could readily be trimmed in the process of applying and enforcing it in particular cases. Rather, its very existence would dramatically chill protected speech by undermining the openness and free exchange of information at the heart of the Internet. It should not be enacted by Congress.

Later, as he dives into even more detail, he explains why Abrams’ analysis totally misses the mark:

Mr. Abrams stresses ?[t]he Supreme Court?s most detailed treatment of the interrelationship between the First Amendment and copyright, the seminal case of Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).? (p. 3). Yet the Harper & Row case involved a traditional, time-honored copyright principle ? the ?fair use? doctrine ? not a radical departure from the familiar contours of copyright law like the provisions of SOPA. Harper & Row did not hold that any kind of revolutionary, speech-suppressing statute would be constitutional, so long it was wrapped in the mantle of copyright law. In fact, in a subsequent case, the Supreme Court made clear that copyright statutes are not ?categorically immune? from First Amendment scrutiny and explained that the approach of Harper & Row applied only ?when . . . Congress has not altered the traditional contours of copyright protection.? Eldred v. Ashcroft, 537 U.S. 186, 221 (2003). Whatever else may be said of SOPA, it certainly ?alters? those contours.

The fact that SOPA?s purpose is the protection of intellectual property rights does not change the constitutional calculus. Benign motives do not shield legislation from First Amendment scrutiny, nor is ?[i]llicit legislative intent . . . the sine qua non of a violation of the First Amendment.? Minneapolis Star & Tribune Co. v. Minnesota Comm?r of Revenue, 460 U.S. 575, 592 (1983). The Supreme Court has ?long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment.? Id. at 592; see also Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991) (striking down law despite absence of evidence that ?the legislature intends to suppress certain ideas?); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987) (speaker need adduce ?no evidence of an improper censorial motive? in order to invalidate law).

Along with his letter, there was another letter sent by internet law scholar Marvin Ammori, who notes that his letter (pdf) has some overlap with Tribe’s, but also digs into some other issues around the First Amendment and why both PROTECT IP and SOPA don’t survive First Amendment scrutiny.

these bills target considerable speech by speakers who are engaging in no direct or indirect infringement, from websites “enabling” infringement to advertisers engaged in truthful, non-infringing commercial speech and search engines delivering results. Because these bills restrict considerable protected non-infringing speech, several different doctrines would trigger standard First Amendment scrutiny . These doctrines include the Supreme Court’s doctrines of overbreadth, vagueness, and prior restraint, as well as its decisions in United States v. Stevens and Eldred v. Ashcroft. Standard First Amendment scrutiny, not any standard applicable to copyright infringement, would logically apply for restrictions on non-infringing, protected speech by search engines, domain name providers, and advertisers. Under standard First Amendment scrutiny, both PROTECT IP and SOPA are clearly unconstitutional in restricting these categories of protected speech.

How much longer will supporters of these bills continue to trot out just Floyd Abrams, as if he’s the only voice on the matter?

Filed Under: first amendment, free speech