Controversial Copyright Bills Would Violate First Amendment–Letters to Congress by Laurence Tribe and Me

Today, both Professor Laurence Tribe and I submitted letters and legal memoranda to Congress explaining that proposed copyright legislation would violate the First Amendment and be struck down in court. (His letter is available here, and mine is available here.)

Who Else Opposes the Bills?

Professor Tribe and I both felt compelled to write because of the threat to freedom of speech from the PROTECT IP Act in the Senate and the Stop Online Piracy Act (or SOPA) in the House.  Others have also come out to oppose the bills, including the leading civil liberties organizations (at home and abroad), venture capitalists, the leading technology platforms from Facebook and Google to Tumblr and Zynga, and (today) hundreds of entrepreneurs. In fact, a million people emailed Congress and well over 90,000 personally called their Members to oppose the bills, many during a coordinated “American Censorship Day” inspired by the bills’ free speech burdens, a day organized by Fight for the Future, Demand Progress, Electronic Frontier Foundation, Public Knowledge, and Mozilla, among others. My old organization, Free Press, also opposes the bills. Over 90 law professors have also come out against the Senate version and even more against the House version.

Who are Professor Tribe and I?

Professor Tribe is perhaps the nation’s leading constitutional law expert and among its greatest Supreme Court advocates. Both Barack Obama and Chief Justice Roberts were his students at Harvard Law School. (So was I–everyone wants to take his class.) My expertise is in First Amendment and Internet law–I researchwrite on, speak about, and litigate these issues. I have worked on Internet freedom issues for seven years and brought one of the most well-known and important cases involving Internet freedom–the Comcast-BitTorrent network neutrality case.

Why SOPA and PROTECT IP Violate the First Amendment

From a free speech perspective, the problem with SOPA and PROTECT IP can be stated simply. The bills are not limited; they’re sledgehammers not scalpels.

They do not, as often advertised by the copyright industry, merely target foreign “rogue” sites like the Pirate Bay. They are not even limited to sites guilty of any copyright infringement, direct or even contributory infringement. Instead, the bills would extend not only to foreign but also to domestic websites that merely “facilitate” or “enable” infringement.  Thus, in their language, the bills target considerable protected speech on legitimate sites such as YouTube, Twitter, and Facebook.  The bills also affect non-infringing speech by search engines, advertisers, and domain name providers.

Coupled with this overbroad scope, the bills authorize remedies that lack the usual procedural safeguards, ensuring that even more protected, non-infringing speech will be restricted. Even though a judicial determination is generally required to remove speech from circulation, the House version empowers copyright-holders to send notices to payment processors and advertisers to shut off funding for non-infringing sites that meet the bill’s broad definitions. The bills also encourage over-enforcement by making companies immune from suit for mistakenly punishing sites outside even the bills’ over-expansive scope.

My letter addresses the threshold question of why standard First Amendment scrutiny applies to these bills. Some suggest that the bills should get a constitutional pass because they merely suppress copyright infringement, and copyright statutes generally receive relaxed scrutiny under the First Amendment. But, as noted above, these bills target considerable speech by speakers who are engaging in no direct or indirect infringement, from websites “enabling” infringement to advertisers engaged in truthful, non-infringing commercial speech and search engines delivering results. Because these bills restrict considerable protected non-infringing speech, several different doctrines would trigger standard First Amendment scrutiny. These doctrines include the Supreme Court’s doctrines of overbreadth, vagueness, and prior restraint, as well as its decisions in United States v. Stevens and  Eldred v. Ashcroft.  Standard First Amendment scrutiny, not any standard applicable to copyright infringement, would logically apply for restrictions on non-infringing, protected speech by search engines, domain name providers, and advertisers. Under standard First Amendment scrutiny, both PROTECT IP and SOPA are clearly unconstitutional in restricting these categories of protected speech.

Professor Tribe’s letter reaches the same conclusion, focusing on the House version of the bill, SOPA, and focusing on the applying standard First Amendment principles, rather than my letter which focused more on explaining why those standard principles apply in the first place. His analysis concludes that portions of the bill are unconstitutional as prior restraints, as unconstitutionally vague, and for not being narrowly tailored to a compelling or important interest as required to pass the heightened scrutiny applicable to speech restrictions. Professor Tribe also responds to the arguments provided by Floyd Abrams that SOPA is not an unconstitutional prior restraint; he explains that Mr. Abrams’s own analysis provides evidence that SOPA’s provisions are in fact unconstitutional. (Abrams’ clients are copyright companies; Tribe’s are consumer electronics companies; mine are tech companies.)

Professor Tribe and I make some overlapping arguments, even without coordination or planning, because the House and Senate bills so evidently violate core principles of First Amendment doctrine–overbreadth, vagueness, prior restraint and others.

Civil liberties organizations describe the bills as encouraging “American censorship,” a weighty charge. But the legal analysis by Professor Tribe and I support that conclusion. At least, according to the American Supreme Court’s established First Amendment jurisprudence.

Congress does not need to pass bills sure to be struck down after years of litigation, uncertainty, and millions of taxpayer dollars wasted in fruitless litigation. Congress need not send a message to the Internet that it seeks to censor the web.

Congress can, in fact, remedy the bills by narrowing them to conform to constitutional limits. As both Professor Tribe and I suggest, Congress should begin by focusing its bills on actual infringement, rather than on speech far beyond infringement. And Congress should ensure adversary judicial proceedings before the silencing of speech available to Americans.

I provide greater detail  in the last few pages of my memorandum on the particular steps Congress should take to narrow the bills enough to survive First Amendment scrutiny–steps that can preserve freedom of speech for the future users and creators on the Internet.

66 thoughts on “Controversial Copyright Bills Would Violate First Amendment–Letters to Congress by Laurence Tribe and Me

  1. [...] saying that the punishment was too harsh and was a violation of free-speech rights.” As the US government considers its own possibly censorious Internet laws, its complaints of other countries’ may lose some persuasive [...]

  2. [...] This Thursday, a bill that would create America’s first Internet censorship system is going to a full committee for a vote, and is likely to pass. This week, millions of us will protest censorship, censoring our own posts and asking you to call Congress. We need your help – please make a call right now. “When ideas are blocked, information deleted, conversations stifled and people constrained in their choices, the Internet is diminished for all of us.. There isn’t an economic Internet and a social Internet and a political Internet. There’s just the Internet.” Hillary Clinton (United States Secretary of State) “When civil liberties organizations describe the bills as encouraging “American censorship,” a weighty charge, the legal analysis by Professor Tribe and I support that conclusion. At least, according to the American Supreme Court’s established First Amendment jurisprudence.” –  Marvin Ammori (Laurence Tribe, leading Constitution Scholar) [...]

  3. [...] week, two leading Constitutional scholars offered detailed analyses of the Internet blacklist bills now pending in Congress, the Stop Online Piracy Act (SOPA) and [...]

  4. [...] scholars Laurnce Tribe and Marvin Ammori have written a letter to Congress and a blog arguing that “The bills are not limited; they’re sledgehammers not scalpels. They do not, [...]

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  6. [...] American speech. But it would not end the story if the legislation only targeted foreign sites: the First Amendment protects Americans’ ability to access non-infringing foreign speech no less than it protects our ability [...]

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  20. Vincent chen says:

    Are we back to WWII?

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  22. Sim says:

    On a final note, they say they want to censor the webb to block unneeded foreign business but yet its Ok to go to foreign countries and use our money to buy there goods at their cost. If its Ok to use our money in there countries whats the difference from the webb? Most companies that allow these transactions are American based and they always have disclaimer and messages that tell us as American what to look out for when we make any type of transaction. If we are not able to comply to this we do have a choice not to continue and move on to another site. Internet business are all taxed and licenced, and as research knows it if you most people do their home work they can find out from research which ones are good and which ones are not. So, why? This is America, where Choice is free to all those who are Americans. To Govern a the Webb means you are trying to have control of the World by blocking them out and not allowing them to service those who do not mind their service. That is not the American way because we use other countries resources and there currency to meet our needs. But in turn, it not Ok to do it on the Webb? this does not make sense … SO PLEASE EVERYONE VOTE AGAINST CONTROL!! Its not fun to have your space taken and controlled and watched, and censored. There a thin line. Today its one Bill tomorrow theres more to follow this is CONGRESS they have nothing but red Tape!! and pretty soon what will be left of the WEBB if everything is filter to what they want YOU To SEE.. and PAY FOR. JUST THINK ABOUT IT AND VOTE NO CENSOR!!!

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  27. [...] upon free speech. Marvin Ammori, a leading First Amendment lawyer and Internet policy expert, writes this (emphasis mine): From a free speech perspective, the problem can be stated simply. The bills are [...]

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  37. According my coolege education, this nation was subject to reform from a religious and beauracratic type governing. My name is and always was administered in all types of literature. If this bill passes it’ll protect me from peopl who do not understand the simplicity of speech and their destined level of a higher education. I can prove my proclaimations with as little as an asssociates degree in electricity. A technological field of education. This bill might support a paradox for the judiciary system to justify other civil rights. One: the privacy of a prodigal king, if that kings legacy was inherited by simple educated terms. Two: a paradox will only evaluate a two sided argument when a debate developes from ignorance. If this bill prevents people without a liscence to publish literature, then you have a biasedness from the U.S. government and civil war is still blazing. I have to personaly consider the obvious because the natural intent of media was to mediate real world things to a real world society.

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  44. choct says:

    The Internet, as I see it, is a wild, irregular peg that more than one government wish to push into a square hole. They wish to benefit from it (during election time to further their ”propoganda” etc etc.) and want to ”destroy” the core of it at the same time. Rather contradictory.

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  52. Aaron Smith says:

    I think we will see a huge backlash generated by these bills in the next few days. I personally wrote my congressman and senator for the first time today. I think SOPA and PIPA will be dead on arrival. Is that really the issue though?

    Why are we in this situation? Why were these bills crafted the way they were, then forcefully rushed through congress? It’s staunch supporters provide a not-so-subtle clue. The RIAA, the MPAA, News Corp., and other media companies/conglomerates are all for this…and they persuaded a few politicians to take their side.

    I think the big question is how long is the American public going to be on the defensive from these media giants who influence the political process? How many different campaigns and tactics can the RIAA, MPAA, etc. try before we have had enough. I think it is time to go on the offensive and take the fight to them.

    The whole purpose of copyright extremely simple. It sole reason for being is to allow the creator (of a movie, song, photo, etc.) to be free from copycats (for a limited amount of time) so they can make some money and be encouraged to create more. That’s it. In current form it allows creators to keep the copyright for 70 years…after their death. To me this is ridiculous, along with the huge fines levied against individual violations.

    I say the next step after the defeat of SOPA and PIPA is copyright reform. I think we have allowed media companies to define what piracy is, and that needs to change. Only then can we truly confront piracy and maintain the original intent of copyright laws.

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  60. [...] least, according to the American Supreme Court’s established First Amendment jurisprudence.” – Marvin Ammori (& Laurence Tribe), Leading Constitution Scholars “It contains provisions that will chill innovation. It contains provisions that will tinker [...]

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