Marvin Ammori

Great news. Press release below.

Washington, D.C. – Nevada Senator Harry Reid released the following statement today on the Senate’s PROTECT I.P. Act:

Here is a link to listen to the show. On Point is awesome, and Tom’s an excellent host. Worth listening to every minute of this, in my humble opinion.

I debated a representative from the Copyright Alliance, and we followed Reddit founder Alexis Ohanian.

Wednesday, January 18, the Internet goes on strike. Hundreds of sites, from Wikipedia and Mozilla to Google, are protesting the copyright-censorship bills PIPA and SOPA. For more information, see here and here.

The bills’ supporters have strongly argued that American sites are exempt from the bills and that the bills only target foreign sites. They made this argument to Congressmen even when the original SOPA bill was introduced, before the “Manager’s Amendment,” even though the first SOPA bill clearly and explicitly targeted American sites. More recently, on MSNBC, the NBC General Counsel repeated that argument over and over. This morning, at the State of the Net Conference, the Chamber of Commerce made the same argument: only foreign sites will be affected.

Even if this were a saving grace, the bills’ opponents claim that the bills in fact would significantly burden American sites. I wrote a post here that many people point to as the “definitive” post explaining how PIPA and SOPA target American companies. I explained that the foreign domains of American sites (Google.ca, Amazon.co.uk) subject American companies to punishment. I explained that the anti-circumvention provisions subject Twitter, Facebook, Google, WordPress and other American sites to injunctions if people use them to explain how to get around the bills’ remedies. I also noted that those provisions would make illegal encryption technology, like State-department supported Tor, an anti-censorship tool.  And I explained that all of the remedies burden American companies, by requiring American search companies, service providers, ad networks, and payment processors to take certain steps when faced with a court order about a liable site.

So I feel compelled to respond to a bizarre counterargument I heard today. This morning, at a conference, the counsel for the Chamber of Commerce said that Amazon.co.uk or Google.ca would not be covered by the bill because the bill only applies to “US-directed sites” and those sites with foreign domains are directed to foreign audiences. Later in the day, I spoke with USA Today, and, after my chat, the reporter called back to tell me that the other side said I was wrong about Amazon and Google being subject to the bill because of foreign domains. The argument again: Google.ca and Amazon.co.uk (and others like them) are not “US-directed sites.”

So I’d like to say: this is your best argument? It’s astonishingly weak for two reasons.

First, the bills define US-directed site to mean almost any site that you can access in the US. PIPA does not have a definitive test, but it lets courts determine which sites are directed to the US based on several indicia, including whether the “Internet site has reasonable measures in place to prevent such goods and services from being accessed from or delivered to the United States.” (PIPA, page 48.) Meaning, if the site hasn’t blocked American users from accessing the site, then it’s US-directed. The whole point of the Internet, though, is that sites are globally available, and not blocked for particular countries. SOPA, on the House side, merely requires “minimum contacts” sufficient for personal jurisdiction, which is a very low standard that would touch most sites–as any law student would learn after reading the International Shoe case in the second week of Civil Procedure. (See SOPA, page 9).

Second, this argument is unconvincing because it suggests that the bills would cover zero sites in the whole world. If Amazon.co.uk and Google.ca are exempt from the bill, then so are ThePirateBay.co.uk or ThePirateBay.ca. The point of SOPA and PIPA, in theory, is to target foreign sites, who are defined based on having foreign domain names. So, the Chamber is saying, “Don’t worry Google.com won’t be subject to the bills because that’s not a foreign site.” Now it says, “Don’t worry, Google.ca won’t be subject to the bills because it’s not a US-directed site.” Does that mean neither MegaUpload.com or MegaUpload.ca is subject to the bill? By my count then, the bills don’t apply to any sites that have a domestic domain name nor do they apply to any sites that have a foreign domain name.

The Chamber is trying to convince us that the bills apply to zero websites and companies? They wouldn’t apply to MegaUpload.com or MegaUpload.ca, Google.com or  Google.ca, ThePirateBay.org or ThePirateBay.fr?

This doesn’t strike me as highly convincing.Why would studios and labels spend millions trying to pass a bill that affects zero websites and companies?

They wouldn’t.

Yesterday morning, the founder of Reddit, Alexis Ohanian, was on Up with Chris on MSNBC debating SOPA/PIPA with the NBC General Counsel. Kudos to Chris Hayes for having the courage to have a segment on a bill that his bosses at NBC oppose, and kudos to NBC for sending their head lawyer onto the segment to present the NBC viewpoint. Brian Stelter of the New York Times has a short piece about the segment and embeds the segment here. It’s worth watching.

Yesterday night, I jumped on Al Jazeera English. Here is the clip, and I embed it below.

Other than a brief mention on CNN, MSNBC’s was surprisingly the first mainstream coverage of this issue.

Alexis was excellent and my mother tells me I did a fine job too.

Afterwards, I wished that Alexis and I had been able to have a mind meld into one magical person, like the superhero Firestorm.  He did a great job of discussing how these bills would make anti-censorship tools illegal. He noted that the State Department funds and encourages anti-censorship tools and these bills would make those tools illegal. I wish I had had the time to discuss that issue on Al Jazeera English. Considering Al Jazeera’s role in the Arab Spring and role of anti-censorship tools in autocratic regimes, I wish I could have conveyed that point on Al Jazeera’s English channel.

Over at MSNBC, the NBC General Counsel kept claiming that, based on his read of the bills, they only affected foreign websites. Alexis and Chris Hayes aren’t lawyers so it was hard for them to disagree with an experienced lawyer on statutory analysis. But I’m also an experienced lawyer, and I’ve  evaluated the statute and have detailed the exact sections of the bill that severely burden American sites. After the show, Chris retweeted my post on the issue. Alexis also linked to my post in his Google Plus posting about the show.

Glad that we have seen at least some coverage of these really important bills that could dramatically change the Internet for the worse–suppressing free speech, harming security, threatening innovators and start-ups.

Also, even if two of us can’t meld into one superhero, SOPA and PIPA have caused a firestorm online, as millions speak with a unified voice, and it won’t let up soon, even if that voice is silence.

The White House has said it will not support copyright legislation that stifles free speech, undermines our cybersecurity, or threatens economic innovation. The Electronic Frontier Foundation has a great post discussing some of the provisions in PIPA/SOPA that would … stifle free speech, undermine cybersecurity, and threaten economic innovation. Here is the link.

Yesterday, Google rolled out some big changes to its search engine, attempting to more fully integrate results from social networks. Well, not network[s], but network.  Google does not have the right to index most Facebook content, and Google search will integrate content from Google + . It has three main tweaks. First, search will display, in your results, photos and post from Google+ where relevant, but only those posts in your own account and those  shared with you. Other people will not see these results; they’re personalized. Second, Google + profiles will show up in search and in Google’s usual autocomplete function. Third, Google will suggest relevant profiles and pages on Google +; if you search for music, you might see Sufjan Stevens’ profile.

There’s been a range of reactions and I figured I would write up a few thoughts from my perspective as a user and as a lawyer.

As a user, I am a creature of habit and don’t like change. Whenever Facebook changes its look, I get uncomfortable. Unlike my little cousins on the site, I don’t freak out and threaten to leave the site (and then decide to stay), but I adjust slowly. In fact, Gmail has rolled out a “new look,” and I keep switching back to the “old look” I know and love. I could even opt out of Google’s new personalized search, something that Eli Pariser has praised. But search and social are converging and have been for years. Last February, Microsoft and Facebook announced an initiative to make search “more social” on Bing. Google has had personalized search for 7 years and social search for about 2 years. Experts let us know that our social presence affects our search placement and vice versa.

Plus, I could see how these tweaks would be very useful to me as a user. It is useful to me because I might see relevant stories photos shared with me on Google + but that, for some reason, I overlooked when posted. It would be far more useful if Facebook posts and Twitter posts showed up in my results, but Facebook doesn’t want its content integrated into Google search and Twitter’s deal with Google lapsed.  I find personalized search convenient–I read stories on my Facebook feed, my Twitter feed, daily email services, and my iPhone’s Flipboard app, and would love to be able to focus my searches on just those particular services.

But some of the criticism has focused on antitrust concerns. The New York Times quoted Professor Mark Lemley, of Stanford, saying that antitrust law just doesn’t apply here. Google has wanted to index and present results from a huge portion of the web that is invisible to Google: Facebook. So now Google is presenting its own social content, and antitrust, in his words, simply cannot restrain this practice. Lemley, like me, is a lawyer who has done some work for Google, and my law firm continues to do some work for Google, though not on this product.

I also don’t see the antitrust problem, but I haven’t seen an actual antitrust theory proposed. I assume the argument is one that the courts call “monopoly leveraging,” where a dominant company extends its monopoly from one market into another market. People argue Google is a monopoly in search because it handles over 60% of queries. But being a monopoly is not enough–that is the natural result of having better search results. To be illegal, under leveraging theory as I understand it, Google would also have to have a “dangerous probability” of monopolization of the new market–social. (Trinko, note 4)  No offense to Google, but I just don’t see how Google has a dangerous probability of knocking off Facebook in social.

In fact, if the critics are right, and again they haven’t been clear on their theory, I am not sure how Facebook’s tactics shouldn’t be condemned by the same critics. It would also be considered monopoly leveraging. Facebook is probably dominant in social, with 800 million users and has far higher engagement than Google +, which only has 40 million users. Nobody else comes close to those new networks, meaning Facebook could be a monopoly in social (depending on how you define the market). Facebook refuses to let Google index or display content from its site. Facebook has partnered with Bing to make its results more social. Is Facebook acting to leverage its dominance in social towards a dominance in search? I don’t really think so and antitrust law generally encourages aggressive competition that hurts competitors. These moves look like competition, hopefully making Google better at social (and search) and Facebook better at both as well.

Beyond antitrust, Twitter slammed the changes as bad for the Internet and for undermining the ability of users to find real-time news. Those looking for real-time news usually search Twitter and will probably continue to do that. (A CNET writer called the claim “a bit of a stretch.”) I discover real-time news far more often on Facebook than on Google News or a regular Google search. The change may encourage people to post breaking news on Google + so that the results show up in Google search, but it’s not clear that people posting breaking news will do so only on one service. News seems to travel far more quickly on Twitter and Facebook than through search. I can see why Twitter would oppose the move, but their response hasn’t suggested that Google has done anything illegal or improper, and I’m not yet convinced of its real-time argument. Professor Eric Goldman came to a similar conclusion–that the legal argument is missing.

These are really just quick thoughts. I hope my search results get better but don’t yet see an actual legal theory suggesting Google can’t incorporate social results into search.

The Seattle Times has a nice editorial about the retirement of FCC Commissioner Michael Copps, calling him “Mr. Public Interest.” The FCC’s mandate is to further the public interest, and nobody has done it better. The editorial focuses on Copps’s opposition to media consolidation, but Copps was instrumental in fighting for a range of good rules.

Perhaps nobody had as important an impact on network neutrality. As a geeky lawyer, I can list off a few arcane legal moves that changed the future of the Internet–his dissent in the 2003 Cable Modem Order that warned about the coming threat to net neutrality, his concurrence in the 2005 Wireline Order that helped create the FCC’s Internet Policy Statement which provided guidance in complaints against network providers, his vote in the AT&T Bellsouth merger in 2006 imposing a net neutrality condition on AT&T, and his aggressive negotiating in December 2010 for the strongest network neutrality rule the wavering FCC Chairman would agree to.

Michael Copps is not a household name. He toiled in a bureaucracy with arcane rules and legal orders, implementing multi-year strategies to pursue the public interest–one dissent, one speech, one public hearing, one vote, one day at a time. But the millions of Americans using an open Internet today have Mr. Copps, in part, to thank.

The tech and civil liberties communities have been fighting proposed copyright legislation. Critics have argued that the proposed legislation would break the Internet, create the Great Firewall of America, and lead to censorship while doing little to stop piracy itself. The bills are called the Stop Online Piracy Act (SOPA) in the House and the PROTECT IP Act (PIPA) in the Senate.

The point of this post is more narrow than explaining all that is wrong with the bills. It responds to one particular argument: defenders of SOPA and PIPA keep saying that the legislation would not affect domestic sites. They say that the bills only affect foreign infringing sites like The Pirate Bay and MegaUpload.

Unfortunately, they’re wrong. They’re wrong for at least three reasons.

First: The bills apply to the many American sites that have domestic and foreign domain names. This means Google.ca, Amazon.co.uk, and all the other foreign sites registered to American companies. (See the marked up version of PIPA, page 33, and the Manager’s Amendment to SOPA page 4. To understand the reference to registrar and registry, see definitions here.) The definition of a “website” in the bill includes even a “portion” of the site. So if even a few pages on Amazon.co.uk include copyright-infringing material, such as used bootleg CDs, then Amazon would have to respond to the bill.

Second: The bills’ anti-circumvention provisions don’t even pretend to limit the bills to foreign sites. They clearly apply to American sites. Any tool that helps anyone “circumvent” the bills’ remedies are illegal. Since the bills’ remedies include domain-name breaking and removal from search engines, any American sites that permit you to search for, or find, The Pirate Bay’s new domain name is potentially liable for circumvention. At least some people will tell you where to find The Pirate Bay, and they will use their Facebook status, their Twitter posts, their Tumblr, their blog on WordPress or Blogger, a Youtube video, or a webpage indexed by Google to do it. That means all of those American sites displaying the information might be subject to SOPA and PIPA as anti-circumvention tools. The language is pretty vague, but it appears all these companies must monitor their sites for anti-circumvention so they are not subject to court actions “enjoining” them from continuing to provide “such product or service.” What “product or  service” might be shut down?  The language is unclear. What could be shut down is the particular tweet or the entire Twitter service; one video or all of YouTube . (If it were just one tweet or video, the existing laws, such as the Digital Millennium Copyright Act would suffice, so the proposed law may be read more expansively.) (For evidence of this point, read the marked up PIPA, page 42, and the Manager’s Amendment to SOPA, pages 20-21.) Apparently, the SOPA/PIPA supporters are saying there’s “immunity”; they mean YouTube and Twitter wouldn’t pay damages-fees for circumvention. But YouTube and Twitter could be shut down. They would be “enjoined” from providing service, whatever that means. That’s an even bigger threat than damages.

Third: Beyond the first two, the enforcement provisions regarding even The Pirate Bay obviously impose a burden almost exclusively on American companies. Search companies have to remove links from their search engine, imposing compliance costs. This applies to Google, Bing, Yahoo, StumbleUpon, and also to smaller search engines like Blekko. The American domain-name providers must break the connection between some domains and IP addresses. This applies to large and small American DNS-providers alike. And the advertising and payment processing provisions apply to American companies. (For evidence, note even the bills’ defenders admit the bills will commandeer American intermediaries to target foreign sites. Indeed  it deliberately commandeers American intermediary companies not involved in any infringement.)

So, for these three reasons, the sites burden American sites and American speech.

In fact, I don’t think ThePirateBay.org and MegaUpload.com are even covered by the bills–despite all the invective against them. The bills define foreign sites based on their domain names, and .ORG and .COM are not foreign.

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 to access domestic speech. It protects our right to read books by Voltaire, Vaclav Havel, or James Joyce no less than our right to read Milton Friedman, Scott Fitzgerald, and Sabina Murray.

(Note: in addition to loving the Internet and being a long-time free speech lawyer and scholar, I also now represent some tech companies, some of which are on record against these bills. Also, if I misunderstood the import of the bills’ language in some way, I am happy to correct.)

The tech and civil liberties communities are all focused on a pair of bills in Congress aimed at “rogue foreign sites” like All of MP3 and The Pirate Bay, but that actually appear to target Tumblr, Twitter, and YouTube–and commandeer search engines, domain name services, and advertisers to target these legitimate sites. Today, dozens of top tech CEOs have taken out full page ads in major papers across the country. And thousands of Americans are contacting Congress through the amazing effort of AmericanCensorship.org, a joint project of several civil liberties groups.

In reviewing these bills, I produced a memorandum for Congress analyzing their First Amendment problems. Professor Laurence Tribe filed a letter on the same day, he on behalf of the consumer electronics industry and I on behalf of tech companies. We agreed on several, fundamental key points, including that the bills were overbroad and unconstitutional as written. I discussed the pieces on Balkinization.

The  House version of the bills–called the Stop Online Piracy Act, or SOPA–will face a Committee vote tomorrow. Two nights ago, the Committee leadership swapped out the original bill for a new bill. The new version, substituted through a procedure known as a Manager’s Amendment, is designed to address some objections raised by tech companies, civil liberties groups, and academics. As a result, in the past 36 hours, those interested in Internet freedom and copyright have moved quickly to analyze the new bill. (See here, here, and here.)

Yesterday, I joined in a staff briefing organized by friends at Net Coalition to discuss the new version.

At the briefing, I made three points:

1. The new version is an improvement.
2. The Committee staff seems to have grappled with concerns raised by technology companies, citizens, the 100 academics who have commented on the House bill, and by Professor Tribe and by me. The staff and leadership deserves some credit and thanks. On a personal note, I was happily surprised to see many tweaks that seemed directly to take my memorandum’s suggestions into account.
3. Despite these initial steps, more must be done to resolve other concerns.

Let me note some weaknesses and encourage some additional movement forward.

First, the new bill still provides far too much uncertainty. The section governing Attorney General enforcement authorizes measures against sites now subject to “seizure or forfeiture in the United States.”  That standard provides little guidance. And the DOJ has had an unfortunate record of seizing non-infringing sites, including a hip-hop blog that was wrongly taken offline for a year. According to critics, this terrible mistake was subject to an apparent cover-up. Our government has also wrongly seized thousands of innocent sites in a child pornography action–seizing one site resulted in the accidental blocking of thousands of other sites. Finally, the DOJ seized a Spanish site that has been cleared, by Spanish courts, of infringement. So Congress should provide websites more certainty and provide the DOJ more guidance.

My suggestion would be to require the DOJ to prove that a site is liable for secondary infringement under existing Supreme Court precedent. If the goal is to target The Pirate Bay and All of MP3, the current tests would clearly capture them–as they captured Napster and Grokster.

Second, the definitions for sites subject to private rights of action  are a novel creation, one that does not track existing Supreme Court precedent. This provides uncertainty because tech companies will undoubtedly be subject to a decade of litigation to define this new standard. The existing precedent–pertaining to secondary liability and the Digital Millennium Copyright Act–would clearly capture The Pirate Bay and All of MP3. There is no reason to create a new definition, unless Congress wants to target YouTube and Twitter and Facebook. If that is the intent of Congressmen, they have not said so. The simpler method is to stick with existing tests. That way, this section does not change the substantive requirements of infringement; it would merely expand the remedies available to copyright holders. (Many others have discussed the problems with the remedies, such as DNS blocking and search engine manipulation, which should be considered.)

Third, one section of the bill enables service providers to block cites based merely on “good faith” and “credible evidence” that a site is covered by another section of the bill. That is very dangerous, as no court order is required for such action. Could Viacom have notified Comcast and Verizon to block YouTube? Viacom probably had “credible evidence” to present, even if that evidence was not enough to win in district court. And Comcast and Verizon would have been subject to a simple choice: immunity through blocking or potential suit from Viacom. Immunity is the surer route. In my memorandum, I discussed the district court case CDT v. Pappert (pdf, pp. 77-79) and its reliance on the Supreme Court decision of United States v. Playboy to demonstrate that Congress will violate the First Amendment by encouraging private parties to restrict more speech, not less, to comply with a law. This immunity provision encourages intermediaries to restrict more, not less, speech, and lacks the necessary judicial determinations set out in the Court’s prior restraint jurisprudence. It should be deleted.

Fourth, the search engine provisions and the domain name provisions will encourage global censorship. The OECD, the European Parliament, the State Department, the Internet Society, and others have emphasized the importance of a unified, open Internet. Blocking domains and search results is a tactic used by repressive regimes. And messing with the domain name system is something the US has consistently opposed–when repressive regimes, have, for example, attempted to transfer more domain name authority to the International Telecommunications Union.

To provide a concrete example, the bill might make The Tor Project illegal. That project, funded by the State Department, creates encryption technology used by dissidents in repressive regimes. Repressive regimes would outlaw this American-sponsored free-speech technology. So would SOPA. Tor is used heavily, by users unconnected to creating Tor, to transfer copyrighted files. It would be illegal for that purpose. Moreover, the technology would end-run around many of the copyright-bills’ remedies, and be illegal for this second purpose. Any American legislation that makes State Department-sponsored free-speech technology illegal in the United States for two separate reasons should give us pause.

Finally, I would recommend processes to permit intervenors in litigation involving foreign sites. The seminal case of Lamont v. Postmaster makes it clear that Americans have the First Amendment right to read and listen to foreign speech, even if the foreigners lack a First Amendment speech right. And our system of law is based on adversarial hearings. If foreign sites are unwilling to submit to American jurisdiction, but their users in the US wish to defend these sites as not engaged in infringement, the users’ rights should be vindicated with at least a simple ability to intervene and litigate the issues. The users would likely lose a case involving The Pirate Bay or All of MP3, but an adversarial hearing would be the best route to determining legality.

These are just some quick thoughts, and there are others out there. Because of the rush to vote on this legislation tomorrow(!), my thoughts, like others, must necessarily be rushed and quick on matters of grave importance.

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 research, write 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 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 by me 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.