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.
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”
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?