Jocelyn's Other Desk

The writings of Jocelyn Smith, aspiring author, soon-to-be lawyer, once and future politician, all-around opinionated twentysomething.

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Location: Orlando, Florida, United States

I'm a lawyer in Florida, working on three novels, a screenplay, and half a dozen pieces of fanfiction at any given moment.

Monday, June 20, 2005

Copyright And Free Speech, Part I

Ah, Nimmer, how do I love thee...

This is a very complicated issue, and there's no way I'll get it all together in one day, (at least not without winding up seriously short on billable hours at work) so I shall post it in installments as my research at work brings me to the issue.

A comment from Claire on a previous post made me decide to start posting this. Often in the debates we've been having, the questions of "free speech" and "free culture" have come up. So now, at least to begin with, I shall start to explore them.

An issue that's been touched on in previous debates but not expanded on nearly enough is how free speech relates and interacts with copyright law as a whole. Amid working on my lovely new assignment regarding copyrights, I have discovered in my favorite treatise an entire section that explains--or at least tries to make sense of--these often-contradictory principles...

"Congress shall make no law...abridging the freedom of speech, or of the press."

Well, as Nimmer notes, by that token, you couldn't punish perjury because it's speech. If you went absolutist with respect to the First Amendment, you COULD yell "fire" in a crowded theater, threaten to kill the president, or blackmail someone, because all those things are speech.

On the other hand, Supreme Court Justice Black was fond of saying "no law" means "no law," no ifs, ands, or buts. Black also said in Reid v. Covert (1957), "the United States is a creature of the Constitution...It can only act in accordance with all the limitations of the Constitution."

Meaning that any law which conflicts with the First Amendment (or any other part of the Constitution) must necessarily give way.

But what does this mean for Copyright? Is the whole statute invalid?

In a sense, anytime a Congressional or state law comes into direct conflict with the First Amendment, any part or all of that law which is in conflict becomes invalid.

So the question becomes: what parts of Copyright Law do or could conflict with the First Amendment?

To be continued...


Blogger Claire said...

I'm reading. I'm listening. Looking forward to more.

10:39 PM  
Anonymous Shadowed said...

I really wish just because a law contracted with the constitution it meant anything. Drug laws, income taxes and a host of other laws(I.E. almost everything in the Patriot act) are un-constitutional(or were but amended the constitution to make them legal)

As for the "fire" thing I believe this excerpt from "Ain't Nobody's Business If I do" by Peter McWilliams explains it best

"Congress shall make no law . . . abridging the freedom of speech, or of the press." As I've asked before, what could be clearer than that? The only limitation on this freedom is, as always, harming the person or property of nonconsenting others. Supreme Court Justice Oliver Wendell Holmes expressed this in his famous example from 1919:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. [The] question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

One could not, then, in supervising the demolition of a building, give the order, "Blow it up," knowing that there still were people inside. The willful murder of those people cannot be protected by saying, "Well, I was just exercising my right of free speech."

I'll be lurking around waiting for the next part though.

12:08 AM  

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