Excellent article by Internet and First Amendment lawyer Marvin Ammori in The Atlantic, Should Copyright Be Allowed to Override Speech Rights? Ammori, with the New America Foundation’s Open Technology Initiative, points out that the have courts recognized the potential threats to free speech posed by defamation law:

Defamation law, while necessary to protect wrongly tarnished reputations, raises well-known threats to freedom of speech. If you criticize a large company, powerful businessman, or public official, you can expect a well-paid lawyer to at least consider bringing a defamation lawsuit. These suits chill protected speech and discourage robust debate. Because of this threat, the Supreme Court has imposed free-speech limitations on defamation suits, most famously in the celebrated 1964 decision New York Times v. Sullivan.

I disagree that asserting that defamation law is “necessary” is a justification for it; in fact it is just another type of intellectual property and just as invalid as the others. Further, the Sullivan decision has problematic aspects, in that it applied the First Amendment, which was a limitation on federal power, not state power, to state defamation law (I disagree that the Fourteenth Amendment was meant to incorporate the Bill of Rights). A federal defamation law, by contrast, would be unconstitutional, for two reasons. First, it would be incompatible with the First Amendment. Second, there is no enumerated power granted to Congress to enact defamation law, so that such a law violates the 10th Amendment and the constitutional structure.

In any case, the thrust of the decision and Ammori’s remarks is correct: defamation law is incompatible with free speech, or at least a threat to it.

Ammori observes that until fairly recently, the courts and Congress also recognized the threat copyright poses to free speech, and thus provided exceptions like fair use and safe harbors to shelter ISPs and others from liability for defamatory or copyright-infringing conduct by users or third parties. But, Ammori argues, “Congress has become inconsistent in its sensitivity to free speech threats,” with new proposals such as SOPA, which threaten to chill or stifle speech on the Internet. Ammori urges Congress to take First Amendment concerns into account in crafting new copyright legislation:

Imagine if our nation, or another, had proposed legislation to punish any website for defamation committed by its users. Imagine also that enforcement against such sites — defined as “dedicated to defamation” — would include automatically cutting off advertising and credit-card processing, removing sites from search engines, and messing with the global Internet addressing system to shut them down.

We would all recognize such a law would lie on the wrong side of free speech. But Leahy, who was a champion of the SPEECH Act, sponsored the Senate copyright bill that would adopt these procedures. Many members of the House supported speech protections for defamation through that Act but fail to support similar protections when a law addresses copyright — even though the proposed laws would miss their mark and silence a lot of non-infringing speech.

Congress should have learned its lesson: the 1998 copyright safe harbor recognizes the lessons of the First Amendment. So does the SPEECH Act. Why can’t copyright legislation today?

As I mentioned in Copyright is Unconstitutional, one could make an argument that copyright in its current form is unconstitutional because it does, in fact, as Ammori observes (also Steven J. Horowitz in A Free Speech Theory of Copyright), conflict with free speech rights in the First Amendment. Unlike defamation law, however, the Constitution expressly authorizes Congress to enact copyright law. And if the First Amendment and the copyright clause were of equal stature, then the courts would have no choice but to try to balance these incompatible provisions. However, the First Amendment came two years after the Copyright Clause: 1791 versus 1789. Thus, if and to the extent there is a conflict, the later provision prevails. It’s as if the 1791 Bill of Rights partially overturned the Copyright Clause. Or as I argued previously:

Clearly copyright is form of censorship. Clearly the First Amendment prohibits federal censorship laws. So: the First Amendment later, and thus implicitly repealed the copyright clause. Or at least the copyright act–the way it’s implemented to permit books to be banned and movies burned.⁵

The more I think about this, the more I think it’s correct. There is a tension between copyright’s censorship, and the free speech and free press protections in the First Amendment (as there is a “tension” between antitrust and IP law). But since the free speech provisions came later, in case of conflict, they prevail. Copyright has to go. It is unconstitutional.

Update: see also Neil Netanel – Copyright’s Paradox for Freedom of Expression: Engine or Brake?

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