Golan and Enumerated Powers

by on September 6, 2007 · 10 comments

I think the Golan decision is a good thing from a policy perspective, given how hard the copyright cartel has worked to keep anything from ever falling into the public domain. However, I share Joe’s puzzlement about exactly how the First Amendment is relevant:

The Tenth Circuit remanded the case to the district court. Its instructions on remand are a little curious. It asks the district court to determine whether the URAA is a content-based or a content-neutral restriction on speech. I’m not sure why, for two reasons. First, whether a law is content-based or content-neutral ought to be a pure question of law; there aren’t any facts to find, so I’m not sure why the district court gets first crack. Second, I can’t imagine a way to find that any copyright law is content-neutral. If I stand on a soapbox in the middle of town and recite a certain poem that begins “Shall I compare thee to a summer’s day?,” the law does not punish me. If I stand on the same soapbox and recite — at the same volume, in the same tone of voice — a different poem that begins “Oh baby baby, how was I supposed to know?,” the law punishes me. That’s the very definition of a content-based restriction. We’ll see what the district court does.

It seems to me that if the courts find a particular grant of copyright exceeds Congress’s power under the Progress Clause, that, in and of itself, should be sufficient to declare the law in question unconstitutional. Otherwise, why would the framers have gone to the trouble of specifying the precise limits of Congress’s powers to grant patents and copyrights?

Perhaps the legal theory here is that Congress has the power to do whatever it likes unless it runs afoul of a right enumerated in the Bill of Rights, but that, if a Congressional action falls within the scope of the Progress Clause, then it’s constitutional even if it runs afoul of the Bill of Rights. That seems bass-ackwards to me, but of course, I was equally perplexed when the Supreme Court decided that growing pot in your backyard for personal use is “interstate commerce.”

  • http://www.joegratz.net Joe Gratz

    I think I needed to explain things a bit better, and I may go back and update my post.

    The Golan court found that the URAA’s grant of rights fell within Congress’s power under the Progress Clause. That happens on page 16. But that’s not the end of the story: even if a regulation falls within Congress’s enumerated powers, it must still, as the Golan court says, “comport with other express limitations of the Constitution.” One of those limitations is the First Amendment; others include, say, the Second and Fourteenth amendments. So, for example, even though Congress has the power under the Commerce Clause to regulate interstate trucking companies, it couldn’t pass a law saying that only white people could drive trucks across state lines. That regulation would be within the Commerce power, but would be prohibited by the Fourteenth Amendment. And even though a ban on all interstate firearms sales would fall within the Commerce power, it probably runs afoul of the Second Amendment.

    Similarly, even if the URAA is within Congress’s power under the Progress Clause, it may still be unconstitutional if it violates an independent limitation, such as the First Amendment. So, for example, a copyright law that did nothing but eliminated copyrights on all books advocating libertarianism might be within the Progress Clause (on the Golan court’s reading), but it would violate the First Amendment (as a viewpoint-based restriction on speech). The Golan plaintiffs’ argument is that even if Congress had the power to pass the URAA under the Progress Clause, the law still violates the First Amendment.

  • http://www.techliberation.com/ Tim Lee

    Well, then I’m even more confused. How do Lessig, Sprigman, and company think the First Amendment applies here? Because I agree with you that aside from really blatant content based discrimination (“No copyrights for libertarian speech”) there don’t appear to be any obvious First Amendment lines to be drawn.

  • http://www.joegratz.net Joe Gratz

    I think I needed to explain things a bit better, and I may go back and update my post.

    The Golan court found that the URAA’s grant of rights fell within Congress’s power under the Progress Clause. That happens on page 16. But that’s not the end of the story: even if a regulation falls within Congress’s enumerated powers, it must still, as the Golan court says, “comport with other express limitations of the Constitution.” One of those limitations is the First Amendment; others include, say, the Second and Fourteenth amendments. So, for example, even though Congress has the power under the Commerce Clause to regulate interstate trucking companies, it couldn’t pass a law saying that only white people could drive trucks across state lines. That regulation would be within the Commerce power, but would be prohibited by the Fourteenth Amendment. And even though a ban on all interstate firearms sales would fall within the Commerce power, it probably runs afoul of the Second Amendment.

    Similarly, even if the URAA is within Congress’s power under the Progress Clause, it may still be unconstitutional if it violates an independent limitation, such as the First Amendment. So, for example, a copyright law that did nothing but eliminated copyrights on all books advocating libertarianism might be within the Progress Clause (on the Golan court’s reading), but it would violate the First Amendment (as a viewpoint-based restriction on speech). The Golan plaintiffs’ argument is that even if Congress had the power to pass the URAA under the Progress Clause, the law still violates the First Amendment.

  • http://www.techliberation.com/ Tim Lee

    Well, then I’m even more confused. How do Lessig, Sprigman, and company think the First Amendment applies here? Because I agree with you that aside from really blatant content based discrimination (“No copyrights for libertarian speech”) there don’t appear to be any obvious First Amendment lines to be drawn.

  • http://www.joegratz.net Joe Gratz

    The plaintiffs in Golan want to do expressive things that would infringe restored copyrights, like performing music or screening films with commentary. These uses go beyond fair use, but are nonetheless speech and are nonetheless protected by the First Amendment.

    The point I failed to make is that First Amendment protections go far beyond prohibiting viewpoint-based regulations (such as “no copyrights on libertarian speech”). They also regulate content-based regulations (such as “no political advertising” or “no nudity on TV”) and content-neutral restrictions (such as “no loud noises after 10 PM”). Though they deal with those categories of speech differently (requiring least restrictive means and narrow tailoring, respectively), the First Amendment still controls what Congress may and may not do to regulate speech.

    But regardless of the standard, the government will have to show that the purpose of the law is important enough to justify its impact on free speech. Whatever the Supreme Court says about the right to free speech bearing less heavily when one is making “other people’s speeches,” leading a student orchestra in a concert commemorating a national tragedy (as one of the Golan plaintiffs wished to), for example, is indisputably an expressive act protected by the First Amendment. Any law that burdens it must justify that burden.

    If you’re interested in the facts behind the Plaintiffs’ First Amendment claims, you may want to take a look at pages 15-19 of this brief.

  • http://www.techliberation.com/ Tim Lee

    So the “traditional contours” business is basically just a stare decisis argument that, essentially, if the founders didn’t think a given feature of copyright law ran afoul of the First Amendment, then neither should we?

  • http://www.joegratz.net Joe Gratz

    The plaintiffs in Golan want to do expressive things that would infringe restored copyrights, like performing music or screening films with commentary. These uses go beyond fair use, but are nonetheless speech and are nonetheless protected by the First Amendment.

    The point I failed to make is that First Amendment protections go far beyond prohibiting viewpoint-based regulations (such as “no copyrights on libertarian speech”). They also regulate content-based regulations (such as “no political advertising” or “no nudity on TV”) and content-neutral restrictions (such as “no loud noises after 10 PM”). Though they deal with those categories of speech differently (requiring least restrictive means and narrow tailoring, respectively), the First Amendment still controls what Congress may and may not do to regulate speech.

    But regardless of the standard, the government will have to show that the purpose of the law is important enough to justify its impact on free speech. Whatever the Supreme Court says about the right to free speech bearing less heavily when one is making “other people’s speeches,” leading a student orchestra in a concert commemorating a national tragedy (as one of the Golan plaintiffs wished to), for example, is indisputably an expressive act protected by the First Amendment. Any law that burdens it must justify that burden.

    If you’re interested in the facts behind the Plaintiffs’ First Amendment claims, you may want to take a look at pages 15-19 of this brief.

  • http://www.techliberation.com/ Tim Lee

    So the “traditional contours” business is basically just a stare decisis argument that, essentially, if the founders didn’t think a given feature of copyright law ran afoul of the First Amendment, then neither should we?

  • http://www.joegratz.net Joe Gratz

    I think that’s a reasonable way to read the “traditional contours” language from Eldred, yes.

    That’s not to defend the “traditional contours” language. I think copyright laws should be reviewed like any other law that restricts speech, whether they’re “traditional” or novel or something else. But the Eldred decision left showing a change to “traditional contours” as the only way a copyright law could get ordinary First Amendment review, so the plaintiffs in Golan had to meet that standard in order to proceed.

  • http://www.joegratz.net Joe Gratz

    I think that’s a reasonable way to read the “traditional contours” language from Eldred, yes.

    That’s not to defend the “traditional contours” language. I think copyright laws should be reviewed like any other law that restricts speech, whether they’re “traditional” or novel or something else. But the Eldred decision left showing a change to “traditional contours” as the only way a copyright law could get ordinary First Amendment review, so the plaintiffs in Golan had to meet that standard in order to proceed.

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