Technology Liberation Front: The Technology Liberation Front » Archive » Golan and Enumerated Powers
Joe Gratz
· 2 years ago
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.
Tim Lee
· 2 years ago
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.
Joe Gratz
· 2 years ago
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.
Tim Lee
· 2 years ago
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?
Joe Gratz
· 2 years ago
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.
All Comments
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.
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.
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.