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Old 29th September 2011
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Faux Free Speech Objections to PROTECT IP Act

I thought fellow GS'ers might be interested in the following article I wrote, which appeared in the latest issue of MusicTechPolicy Monthly.



Faux Free Speech Objections to PROTECT IP Act
by Terry Hart

"Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA's long terms."

That was the Supreme Court in 2003, responding to a First Amendment challenge to copyright term extension. The challenge failed -- and the Court was correct in noting that the case wasn't really about promoting the values protected by the First Amendment, but about disagreement over Congress's course of action.

A similar thing is happening as Congress moves forward with PROTECT IP Act, designed to remove the profit from piracy. Groups like the Electronic Frontier Foundation and Public Knowledge warn their members that the Act "raises serious First Amendment concerns." Google boss Eric Schmidt has added his voice to these warnings, saying that PROTECT IP could set a "disastrous precedent" for freedom of speech.

But like arguments against the copyright term extension, this ideological rhetoric masks what is largely an economic argument -- the tech sector doesn't want Congress to take away their cut of the profits that online piracy generates.

Robert Levine documents in great detail how the tech industry has wrapped its policy disagreements in the free speech flag over the past decade in his upcoming book (Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business can Fight Back reviewed in last month's MTP Monthly). And the National Journal's Sara Jerome wrote specifically about how Google is using the First Amendment to challenge the proposed PROTECT IP Act.

"Google has collected a vast network of allies among nonprofits and think tanks, to which it doles out thousands of dollars in donations every year to help push its agenda in Washington. They are joined by civil-liberties groups, such as the Electronic Frontier Foundation and Don't Censor the Net, that have helped to frame Google's vantage point as a First Amendment issue. Civil libertarians say that the bill could chill free speech by giving authorities power to remove websites without giving owners a chance to fight back."


Legal scholar Frederick Schauer calls this strategy "First Amendment opportunism." He explains that free speech has "considerable rhetorical power." Groups believe that harnessing that power gives them the "upper hand in public debate." If they are successful, it shifts the debate, since no one wants to be painted as an enemy of such a fundamental value.

Copyright law has especially seen a rise in First Amendment opportunism in recent years. As copyright law professor David McGowan points out, "Many copyright scholars object to the way Congress deals with their subject...It's no fun beating one's head against a wall." So they look for a way to trump the legislative choices Congress has made, and "The First Amendment seems like just the thing. Like copyright, it deals with expression, which makes almost any argument facially plausible."

Judging by the attention given to the First Amendment in the lead up to PROTECT IP, it appears that critics of the Act have succeeded in making a facially plausible argument. But does the argument stand up to more probing examination?


Floyd Abrams, one of the nation's leading experts on the First Amendment, doesn't think so. In a recent letter to Senators Leahy, Grassley and Hatch, the ACLU lawyer who successfully defended the New York Times' publication of the Pentagon Papers writes "the PROTECT IP Act is consistent with the First Amendment." He notes that there are few differences in substance or procedure between the Act's provisions and existing remedies in copyright law. The only real difference is that these provisions are aimed at the online world. There's little reason why copyright holders should have less protection there than in the offline world -- and certainly little constitutional reason.

The Supreme Court has already held that, because copyright law already has "built-in free speech safeguards" in the form of the idea/expression distinction and fair use, it is not subject to further First Amendment scrutiny. This preclusion of First Amendment review parallels the Court's holding in Arcara v. Cloud Books, where it rejected First Amendment scrutiny for the closure of a bookstore under New York law as a public health nuisance. Said the Court, "Book-selling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises." In the same manner, putting chat rooms or message boards on a web site dedicated to infringing activities doesn't shield the web site from the penalties that the PROTECT IP Act would create.

You may also hear critics refer to the PROTECT IP Act as a "prior restraint" -- a phrase so loaded that the Supreme Court has cautioned that it not be used as a "self-wielding sword" or a "talismanic test." Generally speaking, a prior restraint is a prohibition against speech both because of the ideas or message it conveys and issued before the speech occurs.

PROTECT IP is neither of these. The Act is completely agnostic about the ideas and messages conveyed through a site's non-infringing content. The only thing that matters under the law is whether the site has no significant use other than engaging in or enabling piracy. If they don't, the Act rightfully imposes penalties on this past behavior, with robust procedural protections for the sites' owners.


To be fair to Google, it is only looking out for its own business interests -- just as any other company does on a daily basis. But it's important to recognize that the free speech rhetoric surrounding PROTECT IP is just that: rhetoric. More importantly, this type of rhetoric does a disservice to artists and creators by suggesting that those who fuel the "engine of free expression" somehow don't value that expression.

Fortunately, Congress recognizes the role of creators in the realm of free speech and doesn't buy into the First Amendment opportunism of the bill's critics. In last July's report on the bill, the Senate Judiciary Committee noted that "protecting intellectual property in the form of copyrighted material is not only important to our economy and jobs, but is also important for advancing the goals of the First Amendment... [copyright law] exists not to prevent free speech, but to promote it... As rogue Internet sites evade U.S. intellectual property laws, they not only cause economic harm, but they trample on these First Amendment values."