I argued in yesterday’s post that copyright burdens speech. Not all who posted comments agreed, but assuming I’m correct (and I’m not the only one to make that claim; others, including Eugene Volokh, have made similar arguments), what, if anything, should be done about it?

Sometimes the law burdens speech for very good reason, such good reason that we favor the law over the speaker. The obvious, regularly noted example is forbidding falsely crying “fire” in a crowded theater. Laws against defamation, false advertising, misleading securities filings, and incitement to immediate violence are others, as are prohibitions on using sound trucks in a residential neighborhood and blasting music above a certain decibel level at an outdoor rock concert.

Moreover, even if we do not believe that the burden on speech is justified (I realize, of course, that “we” is artificial since people often don’t agree – see the comments to my last post!), that does not necessarily mean that the First Amendment as currently interpreted forbids the speech burden. The First Amendment provides that “Congress shall make no law … abridging freedom of speech.” But First Amendment doctrine is highly complex and First Amendment protections far more qualified than the amendment’s sweeping, absolute language suggests.

For that reason, I distinguish in my book between First Amendment doctrine and free speech policy. For example, I think First Amendment doctrine provides that Congress may not abolish the fair use defense because that would constitute an unconstitutional abridgement of speech. But free speech policy – or First Amendment “values” -- might go further. In order for copyright law to best promote First Amendment values, including the value of expressive diversity, courts should interpret fair use broadly and Congress should limit copyright holders’ exclusive rights to prevent them from using copyright as a vertical restraint to suppress competition from new media. Courts and Congress should do that even if the First Amendment does not require it.

Courts have recognized that copyright can abridge speech, but they have almost never actually imposed First Amendment limitations on copyright. In Eldred v. Ashcroft, the Supreme Court held that when “Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” In so holding, the Court strongly suggested that the idea/expression dichotomy and fair use doctrine are critical free speech safeguards within copyright law, that without them, copyright would run afoul of the First Amendment.

As I argue in Copyright's Paradox, I think the Eldred decision is very poorly reasoned and perpetuates copyright’s anomalous treatment in First Amendment doctrine. After all, other legal regimes, including defamation, right to privacy, trademark, the right of publicity, and others, have built-in protections for speech, but courts have nevertheless constitutionalized them, imposing First Amendment constraints to make certain that they don’t unduly burden speech. First Amendment limits are especially warranted in copyright given that the idea/expression dichotomy and fair use doctrine are notoriously arbitrary and indeterminate. At the very least, the First Amendment should be applied to make sure that copyright’s internal free speech safeguards actually do their job.

Last September, the 10th Circuit Court of Appeals held that Congress’ restoration to copyright of certain works already in the public domain alters the traditional contours of copyright protection and thus must be subject to First Amendment scrutiny. The Court reasoned that the idea/expression dichotomy and fair use are inadequate free speech safeguards vis-à-vis removing works from the public domain. It remanded the case to the district court to determine whether the Restoration Act is a content-based or content-neutral speech restriction, and thus whether strict scrutiny or some form of intermediate scrutiny should apply.

Whether the Copyright Act is a content-based or content-neutral speech restriction under First Amendment doctrine is a complex question, which I have previously debated with Eugene. (I think it’s content-neutral.) But whichever the courts determine, it is clear that Copyright Act amendments that alter copyright’s traditional contours should be held to run afoul of the First Amendment when copyright’s internal free speech safeguards provide inadequate protection. As I argue in my book, the anticircumvention provisions of the Digital Millennium Copyright Act, which the legislative history refers to “paracopyright,” should be ripe for First Amendment challenge.