Abstract: INTRODUCTION The Constitution specifically authorizes to provide for copyrights.1 A copyright grants its holder the power to stop other people-noncopyright holders-from saying certain things or distributing certain messages. A legislative grant of this private power to stop speech on the basis of its content is in overt tension with the constitutional guarantees of speech and press freedom. New York Times Co. v. Sullivan2 makes clear that the First Amendment not only prohibits many direct governmental restrictions on people's speech, but also applies to at least some government grants of authority to private persons to restrict another person's speech. What the government cannot do directly it sometimes cannot do indirectly either. Private power founded on general legal rules that themselves do not refer to speech pose a different issue. These rules often provide constitutionally permissible ways for private parties to limit other people's speech. Granting private property holders power to limit other people's speech, for example, while the others are on the property holders' land, usually does not offend the First Amendment.3 Much more constitutionally problematic are laws directed at speech, for example, laws that give private persons power specifically over other people's speech. These laws are aimed at creating in one person property or personal interests specifically in the speech choices of other people. This problematic territory comprises primarily First Amendment limitations on tort law, for example, in the defamation or privacy context, where the defamed or privacy-- seeking person asserts a right to restrict others' speech choices. This territory could also easily encompass some constitutional limits on the enforcement of contractual agreements to restrict speech4 IMAGE FORMULA6or on statutes that prohibit further communication of illegally obtained information.5 Copyright similarly empowers one private party to limit another's speech. It potentially allows one private party, A, to tell another, B, that she cannot say (or publish or distribute) specific content, for example, because A has already said it (in a manner that was fixed in a tangible medium) or has bought the right to say it from someone who had already obtained the copyright. This Essay explores the constitutionality of granting this power. As an amendment to a document that previously had authorized legislation creating copyrights, the First Amendment could be read to nullify the prior grant the way the Thirteenth Amendment entirely takes away any earlier implicit authorization of state power to establish slavery. This view of the First Amendment entirely displacing the earlier text is universally rejected, I think properly, as to copyright.6 Still, the First Amendment generally limits prior constitutional grants of power. The Constitution provides that Congress shall have Power ... To regulate Commerce just as it shall have the power to provide for copyright. Clearly, however, cannot use the commerce power to forbid interstate commerce in books. Likewise, the First Amendment can reasonably be seen .as limiting (although not eliminating) congressional power to grant exclusive rights to author's expressions. In any event, no analytic conflict exists between the First Amendment and the grant of legislative power to Congress. To say Congress shall have power to is uniformly understood to mean that it has the power to do something only by constitutionally IMAGE FORMULA9permissible means. The language, Congress shall make no law ... abridging the freedom . identifies one of the impermissible means. The extent or scope of permitted authority (e.g., the congressional authority to secure rights for authors) is simply what is left after the impermissible means are eliminated. Of course, specifying what means are impermissible in this context requires a careful consideration of the meaning and function of the First Amendment. …
Publication Year: 2002
Publication Date: 2002-04-01
Language: en
Type: article
Access and Citation
Cited By Count: 44
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