[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.
In my paper I attached the following footnote to the quoted sentence above:
Copyright laws may be motivated by a general interest, but they do restrict speech on the basis of content, albeit without reference to a particular viewpoint or subject matter. See Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 971 (10th Cir. 1996) (“Intellectual property, unlike real estate, includes the words, images, and sounds that we use to communicate, and ‘we cannot indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.’” (quoting Cohen v. California, 403 U.S. 15, 26 (1971)); DAVID LANGE & H. JEFFERSON POWELL, NO LAW: INTELLECTUAL PROPERTY IN THE IMAGE OF AN ABSOLUTE FIRST AMENDMENT 372-73 (2009) (“Defining content is at the center of [copyright]…. Copyright, which subsists only in expression, can never be merely content neutral ….”); Lemley & Volokh, supra note 91, at 165–66 (“Copyright law restricts speech: it restricts you from writing, painting, publicly performing, or otherwise communicating what you please. If your speech copies ours, and if the copyright uses our ‘expression,’ not merely our ideas or facts that we have uncovered, the speech can be enjoined and punished, civilly and sometimes criminally.”). [links here to Cardtoons, Lange & Powell, and Lemley & Volokh.]
The crux of Hart’s argument is that people like me (and Powell, Lange, Volokh, and Lemley) are using “content” incorrectly in the First Amendment context. This is not pedantic. As Hart notes, the word “content” carries a lot of weight in the First Amendment realm. Finding a restriction to be content-based invites strict scrutiny, from which few restrictions survive.
Hart (and Prof. Greenberg, whom Hart cites) seem to be defining “content-based” as efforts made to suppress ideas instead of means. Copyright is not “content-based,” the argument goes, because ideas are not monopolized under copyright, and copyright makes no effort to preference certain ideas over others. Copyright addresses means. You can say what you want, you just can’t use protected expression to do so – we all know the quote from Eldred about using “other people’s speeches.” And they’re not alone in arguing this. The esteemed Chemerinski Treatise also suggests that “content-based” restrictions can be broken down into either (a) viewpoint-based or (b) subject-matter based, and those that are neither are content-neutral. Copyright is clearly neither.
This is an incomplete view of content-based restrictions. I’ll freely admit that the Court is frustratingly inconsistent when using “content” and “viewpoint” in its opinions. But, as Volokh notes, the Court has articulated a series of different tests to determine whether a law or action is content-based, and only some of these speak to the “idea” or viewpoint/subject matter conveyed. Others define content-based restrictions as any attempt to regulate the words used in expression. Obscenity, for example, is a viewpoint-neutral-and-yet-content-based discrimination, albeit one we tolerate. (One could strain to argue that obscenity is subject-matter based, but we are now casting quite broad nets around subject matter. A “subject” embracing all forms of prurient, offensive speech is a broad subject indeed.) Bans on profanity are similarly content based, while viewpoint and subject matter neutral. Requiring news organizations to omit names of rape victims or juvenile defendants does not put those subjects off the table, nor does it control any given viewpoint. And yet, all of these have been dealt with under strict scrutiny as content-based restrictions (though, in fairness, not always declared as such in the opinions that apply them).
The “idea/means” distinction is relevant, but only as a question of viewpoint discrimination. Regulation of ideas is regulation of viewpoint. While we do tolerate some forms of content-based restriction on speech, we practically never do so when the discrimination is done on the basis of viewpoint. This is the lesson of RAV v. St. Paul and Perry Education Association v. Perry Local Educators’ Association. Viewpoint discrimination deserves the strict scrutiny it receives, but it is not the only speech restriction to receive strict scrutiny.
The policies of the First Amendment similarly favor drawing “content-based” restrictions broadly, as the Court has. The concerns around government regulation of speech go beyond controlling content as a proxy for controlling viewpoint, a concern raised by Hart vis-à-vis Turner. The worry about undue interference in the marketplace of ideas is not our only concern in First Amendment law. There is a fundamental autonomy to speech that we identify and respect. We are all repulsed by the thought of someone telling us “you can’t say/print/post that,” whatever “that” is. We do not want to have to worry, or self-censor, or feel in any way restrained in our speech. (Imagine, for example, a law prohibiting the use of “filler words” in public discourse. Clearly not viewpoint or subject matter based, and yet certainly likely to receive strict scrutiny.) The right to unencumbered expression is a natural right recognized by the First Amendment, limited by our law only in areas where we have another overriding concern. And thus any regulation of speech that depends on regulating the exact words used should invite strict scrutiny, be it embraced in a viewpoint judgment or not.
But here’s the thing that may distinguish me from others that take this position: I’m okay with copyright existing as a content-based discrimination. I firmly believe that the First Amendment was not designed to trump the Article I power of Congress to provide limited-time exclusivity to writings. I maintain that copyright (done well) is still an incredibly valuable tool for the creation and dissemination of culture. I agree with Hart when he argues that copyright is the engine of free expression. And I agree with Hart when he claims that copyright’s own “built in free speech safeguards” account for copyright’s First Amendment analysis. This is a perfectly accurate statement of the Court’s approach, at least in our post-Eldred pre-Golan world. (And I’m inclined to believe that this Court will only undercut the First Amendment role when it takes up Golan next term.)
I think we need to recognize what the Court has avoided saying overtly but has acted if true since Harper & Row and Eldred – copyright infringement is categorically unprotected by the First Amendment, just like obscenity or defamation or fighting words, provided that the test for infringement includes the defenses for the idea/expression dichotomy and fair use, and does not otherwise alter the “traditional contours of copyright.” The devil is very much in the details here, and I know Hart and I will likely disagree on when Congress goes too far (I’m sure we already do with respect to Golan). But substantively, crying First Amendment will not save the average copyright infringer, nor should it.
But this does not mean that the First Amendment has no role to play in the copyright context. As an unprotected category of speech, it is still subject to the procedural protections that govern all speech regulation. Because another concern guides our First Amendment jurisprudence: the fear of overeager or premature action by the government in the name permissible speech regulation. As I detail fairly extensively in my article above, when adjudication of legality depends entirely on the exact words used and their meaning, courts wait to make sure that the speech meets one of the proscribable categories before they take it out of circulation. Our doctrine has created procedural protections to make sure that lawful, legal speech is not retrained or punished in the name of getting unlawful, proscribable speech (like infringing speech). The law does not require full adjudication, as Freedman v. Maryland shows, but it requires a neutral party to make that determination before speech is enjoined. This is the central problem I identify with Operation In Our Sites: no serious effort is made by any neutral party to determine the legality of speech before websites find their domains seized.
We should not pretend that copyright doesn’t regulate content. It surely does. It does so in the same way that attempts to prohibit public profanity, flipping off a police officer, or using “target” iconography all tried to do. But that does not make it unconstitutional. It only means that we should be aware that enforcement of copyright inherently punishes speech for the words chosen, and approach the subject with the same caution we use in other proscribable speech categories.