[S]ome critics of the law base their objection on the premise that copyright protection infringes on the freedom of speech. A few — certainly not all — of these criticisms are based on the following line of thought: copyright law regulates content, content-based regulations presumptively violate the First Amendment, therefore much of copyright law is unconstitutional.
One recent example is from a paper by Andrew Sellars, who wrote, “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed.” (I don’t mean to single out Mr. Sellars, I only highlight this quote to provide an example of the argument.)
The Supreme Court, of course, rejected the classification of copyright as even a content-neutral regulation — which, in First Amendment parlance, still merits a higher standard of review than general laws. But, looking at the language being used, how can this be? How can copyright law restrict content yet not restrict content? [Footnotes and hyperlink omitted.]
I stand behind those words, but I certainly do not mean to suggest that copyright-regulates-content-and-is-therefore-unconstitutional. There are those that go that far; I’m not one of them. Hart’s critique, however, takes an impermissibly narrow view of content-based restriction under the First Amendment. Copyright is a content based restriction of speech as First Amendment law traditionally defines that term, but, I argue, should be viewed as one of the classic, time immemorial exceptions to the traditional prohibition of content-based restrictions. (Or, more to the point, traditional copyright infringement should be. Copyright is no talisman, as Eldred makes clear.) It is not the substantive unconstitutionality of copyright that concerns me. It is the lack of the procedural safeguards that are typically in place when adjudicating the illegality of speech based on the content thereof.