transcript of Prof. Tribe’s speech on the First Amendment & technological change

by on September 11, 2007 · 18 comments

A few weeks ago, I outlined the amazing keynote address that Harvard University law professor Laurence H. Tribe delivered at PFF’s annual Aspen Summit. Now you can read it for yourself. PFF has just published the transcript of his speech, which was entitled, “Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism.”

Professor Tribe provides a 14-part indictment of new government proposals to regulate “excessively violent” content. But he also speaks more broadly about the importance of defending the First Amendment from attacks on many different platforms, and for many different types of content. Here’s one of my favorite passages from the concluding section of his remarks:

The broad lesson of this discussion of television violence is the centrality of the First Amendment’s opposition to having government as big brother regulate who may provide what information content to whom, whether or not for a price. The large problem that this exposes is that especially in a post-9/11 world, where grownups understandably fear for themselves and for their children and worry about the brave new world of online cyber reality that their kids can navigate more fluently than they can, it is enormously tempting to forget or to subordinate the vital principles of constitutional liberty. Even if, after years of litigation and expenditure, the First Amendment prevails, it can be worn down dramatically by having to wage that fight over and over and over.

Amen to that. And that, in a nutshell, describes what much of my research agenda at PFF has been focused on. It is a pleasure to add Prof. Tribe’s address to our growing body of research on the sanctity of freedom of speech and centrality of the First Amendment to our democratic republic as we continue “to wage that fight over and over and over.”

  • http://www.codemonkeyramblings.com MikeT

    There are a lot of things parents can do to protect their kids. Unfortunately, they require parents to be fairly intrusive with their kids, and to learn about how technology works. What we really face today is a lot of parents who don’t want to rise to the challenge and risk having their kids think that they’re mean or controlling. How hard is it to keep computers out of your kids’ rooms and only in common areas, for example?

  • http://www.codemonkeyramblings.com MikeT

    There are a lot of things parents can do to protect their kids. Unfortunately, they require parents to be fairly intrusive with their kids, and to learn about how technology works. What we really face today is a lot of parents who don’t want to rise to the challenge and risk having their kids think that they’re mean or controlling. How hard is it to keep computers out of your kids’ rooms and only in common areas, for example?

  • http://linuxworld.com/community/ Don Marti

    Congress subsidizes the creation of violent and indecent content by offering the same copyright term to those kinds of content as to others. If Congress wanted to discourage violent movies or games without censoring them, it could simply cut back the length of copyright to a year or two for “NC-17″ or “MA” content.

  • Adam Thierer

    Don… I’m sorry, but I find that argument absolutely ludicrous. It’s the same argument I hear some social conservatives occasionally put forward about porn. If we just revoke copyright protections, they argue, the market for adult entertainment will dry up. PUH-LEASE!

    The reality is that violent movies and games get produced because there exists strong ongoing demand for such fare. There always has. Go back and read the debates Plato and Aristotle had about violence in Greek tragedies. It’s an old story.

    Now it may be the case that not quite as much of that content would be produced if copyright was revoked, but it’s quite another thing to argue that such material would just go away. Not gunna happen.

  • http://linuxworld.com/community/ Don Marti

    Congress subsidizes the creation of violent and indecent content by offering the same copyright term to those kinds of content as to others. If Congress wanted to discourage violent movies or games without censoring them, it could simply cut back the length of copyright to a year or two for “NC-17″ or “MA” content.

  • Adam Thierer

    Don… I’m sorry, but I find that argument absolutely ludicrous. It’s the same argument I hear some social conservatives occasionally put forward about porn. If we just revoke copyright protections, they argue, the market for adult entertainment will dry up. PUH-LEASE!

    The reality is that violent movies and games get produced because there exists strong ongoing demand for such fare. There always has. Go back and read the debates Plato and Aristotle had about violence in Greek tragedies. It’s an old story.

    Now it may be the case that not quite as much of that content would be produced if copyright was revoked, but it’s quite another thing to argue that such material would just go away. Not gunna happen.

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

    Now it may be the case that not quite as much of that content would be produced if copyright was revoked, but it’s quite another thing to argue that such material would just go away. Not gunna happen.

    Adam, haven’t you just endorsed the view of the David Levines of the world here? If the effect of revoking copyright would merely be that “not quite as much content would be produced,” why have copyright at all?

    To the contrary, I think Don’s proposal would have a strong negative impact on the market for violent works, which is precisely why I’m opposed to it. I don’t want to put the government in charge of picking and choosing whose content is worthy of copyright protection and whose isn’t.

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

    Now it may be the case that not quite as much of that content would be produced if copyright was revoked, but it’s quite another thing to argue that such material would just go away. Not gunna happen.

    Adam, haven’t you just endorsed the view of the David Levines of the world here? If the effect of revoking copyright would merely be that “not quite as much content would be produced,” why have copyright at all?

    To the contrary, I think Don’s proposal would have a strong negative impact on the market for violent works, which is precisely why I’m opposed to it. I don’t want to put the government in charge of picking and choosing whose content is worthy of copyright protection and whose isn’t.

  • Adam Thierer

    There are certain types of content that, regardless of the level of copyright protection, I think we can be fairly certain will continue to have a large audience and, therefore, a reasonably large supply of producers. The creators of those works would not be able to secure their creations from unauthorized reproduction or ensure that they receive renumeration for their creative efforts. Nonetheless, a lot of it would still likely be produced.

    At the margin, a proposal to revoke or weaken copyright for certain forms of expression that were considered objectionable might have a small impact on the overall volume of that activity, but not much. In the case of pornography, it would be negligible; almost non-existent. In the case of violent fare, we might not get “Friday the 13th, Part 8,” but we’d still get a lot of other slasher flicks. Whether we got something really creative (and expensive to produce) like a Tarantino or Robert Rodriquez flick is another story, and an issue worth debating. (I’m assuming that most of their movies would be exempt from copyright protection under Don’s proposal).

    But this is all irrelevant to me. The principle of the matter is simple: We should not allow the government to use copyright as a tool of censorship, regardless of how effective it would be in practice.

  • http://linuxworld.com/community/ Don Marti

    Tim, that’s like saying that you don’t think the government should subsidize “student loans” and “sitting on the porch drinking beer loans” differently. The government is always going to encourage some activities and discourage others. Where the activities involve the media business, the copyright program, one of the Article 1 Section 8 economic powers of Congress, is a tool that the government can use to do it without censoring speech.

    (I think that the violent movies would actually get better, since directors would get to do them purely for theater viewing and ignore the DVD market.)

  • http://linuxworld.com/community/ Don Marti

    Adam, the Constitution, in Article 1 Section 8, also allows Congress to grant letters of marque and reprisal. (It’s three clauses down from the copyright clause). But depriving you of a copyright isn’t “censorship” any more than refusing to charter your ship as a privateer is a regulatory taking.

  • Adam Thierer

    There are certain types of content that, regardless of the level of copyright protection, I think we can be fairly certain will continue to have a large audience and, therefore, a reasonably large supply of producers. The creators of those works would not be able to secure their creations from unauthorized reproduction or ensure that they receive renumeration for their creative efforts. Nonetheless, a lot of it would still likely be produced.

    At the margin, a proposal to revoke or weaken copyright for certain forms of expression that were considered objectionable might have a small impact on the overall volume of that activity, but not much. In the case of pornography, it would be negligible; almost non-existent. In the case of violent fare, we might not get “Friday the 13th, Part 8,” but we’d still get a lot of other slasher flicks. Whether we got something really creative (and expensive to produce) like a Tarantino or Robert Rodriquez flick is another story, and an issue worth debating. (I’m assuming that most of their movies would be exempt from copyright protection under Don’s proposal).

    But this is all irrelevant to me. The principle of the matter is simple: We should not allow the government to use copyright as a tool of censorship, regardless of how effective it would be in practice.

  • http://linuxworld.com/community/ Don Marti

    Tim, that’s like saying that you don’t think the government should subsidize “student loans” and “sitting on the porch drinking beer loans” differently. The government is always going to encourage some activities and discourage others. Where the activities involve the media business, the copyright program, one of the Article 1 Section 8 economic powers of Congress, is a tool that the government can use to do it without censoring speech.

    (I think that the violent movies would actually get better, since directors would get to do them purely for theater viewing and ignore the DVD market.)

  • http://linuxworld.com/community/ Don Marti

    Adam, the Constitution, in Article 1 Section 8, also allows Congress to grant letters of marque and reprisal. (It’s three clauses down from the copyright clause). But depriving you of a copyright isn’t “censorship” any more than refusing to charter your ship as a privateer is a regulatory taking.

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

    So Adam, you’re take is that the quantity of violent movies wouldn’t change very much, but that the movies would have lower budgets and therefore lower quality?

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

    So Adam, you’re take is that the quantity of violent movies wouldn’t change very much, but that the movies would have lower budgets and therefore lower quality?

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