The First Amendment vs. Federal Copyright Law

His mind slid away into the labyrinthine world of doublethink... to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing both of them ... [1]

- George Orwell, 1984

The reconciliation of the irreconcilable... the synthesis of opposites, these are the great problems of law. [2]

- Benjamin Cardozo

The Congress shall have Power to... [secure] for limited Time[sic] to Authors and Inventors theexclusive Right to their respective Writings and Discoveries...

- U.S. Constitution, Art. I, Sec. 8, Cl. 8

Congress shall make no law... abridging the freedom of speech, or of the press...

- U.S. Constitution, First Amendment

It ought to be apparent now that the First Amendment we imagined existed is only a dim memory, an historical blip. Before we go to Dr. Thomas Ladanyi's updated version of the real First Amendment, there is one final issue we must explore. Students of the Constitution may, at this point, be hip to an interesting implication that flows from an accurate understanding of the 1791 First Amendment. We'll begin by illustrating with an hypothetical:

The New York Times publishes an article attacking an animal-rights group, employing in the process all the tools that are standard issue in the media disinformation toolbox: unreasonable omission, distortion, guilt by association, innuendo, unreasonable cropping, irrelevant spotlighting, mind-reading, and outright lying, just to name a few of this less-than motley crew. The article is filled with loaded terms like "radical", "dangerous", "anarchy", "militant", and so forth, terms which operate to create a conceptual climate that does not properly represent the views of the group in question.

X, a member of this group, feels that this article is heavily biased. X publishes an analysis of this article in a competing publication, Mediawatch, quoting from the article verbatim, which he must do to show how the slanted and distorted language of the article - its form, not just its content - contributed to the overall bias picture. Merely rephrasing the article is not an option for X, because the bias is in the choice of phrasing itself.

The New York Times, in response, sues in Federal Court to get an injunction against distribution of Mediawatch on the newsstands and to its subscribers, on Federal statutory grounds. The Court grants the injunction, and all copies of Mediawatch are locked away in a warehouse. The author's message is never sent. [3]

Now, the $64,000 question: has X's right to publish his materials via the press been abridged by a Federal copyright statute? The answer is yes - and therefore, those Federal statutes (found in Titles 17 and 18 of the United States Code) [4] - are unconstitutional. If The New York Times wants to sue Mediawatch, it is going to have to do it on grounds of State copyright law, not Federal.

In case you think this is "stretching things", you might want to hear what Professor Nimmer, a highly-respected First Amendment scholar whose writings are regularly quoted in Federal (and Supreme) Court cases, has to say on this issue. In his book Nimmer on Freedom of Speech, Nimmer begins by observing the contradiction between the two clauses of the Constitution, how they are opposed, and how people can be blinded from seeing this antagonism by putting their beliefs in separate, "logic-tight" compartments:

Nowhere is this phenomenon better illustrated than in the 'logic-tight compartments' of those devoted to copyright who maintain, on the one hand, their attitude toward copyright, and on the other, their views on freedom of expression under the First Amendment. Not only is there generally a failure to relate the one to the other, but there is, moreover, a failure to perceive that views of copyright and the First Amendment, held 'side by side', may, in fact, be contradictory. [5]

Well, there's a slight problem here. Not "may" - are. Nimmer notes the contradiction between the two clauses of the Constitution, and how they are opposed. In 1787 Article I, Section VIII, Clause VIII of the Constitution gave authors (against the rights of other citizens) exclusive rights to publish, but in 1791 the First Amendment obliterated this clause:

[M]ost people who oppose censorship, including those concerned with copyright, base that opposition not merely on the narrow economic ground that a creator and his assigns should be able to exploit the creator's works, but also, and more fundamentally, on First Amendment principles of freedom of expression. It is not just the artist's right freely to express himself that is regarded as important. Freedom of speech for all men, whether or not they can qualify as artistic creators, is the basic principle that underlies the opposition to governmental censorship. [6]

Whoops, another error slipped in here! It is not "First Amendment principles of freedom of expression" on which the unconstitutionality of Federal copyright law is based; rather, it is the express language of the First Amendment (and not simply the principles underlying the language) which fails to restrict speech and publication protection merely to the originators - author and/or publisher - of the speech. "Pass-along" speech, since it too is speech, is also covered under the First Amendment. Once Jim says, "let's have a party!", Bill can say, "Jim said 'Let's have a party!'", and Congress has no power to stop Bill from passing along this information, nor any power to prohibit Bill from also saying "let's have a party!" because Jim happened to utter it first.

Unfortunately, Nimmer implicitly rejects the idea that the text of the Constitution is the only legitimate basis for constitutional interpretation. But, to his credit, Nimmer keys in on a significant and formerly-unseen problem:

It is here, it may be suggested, there lies a largely ignored paradox, requiring exploration. The First Amendment tells us that 'Congress shall make no law... abridging the freedom of speech, or of the press'. Does not the Copyright Act fly directly in the face of that command? Is it not precisely a 'law' made by Congress which abridges the 'freedom of speech' and 'of the press' in that it punishes expressions by speech and press when such expressions consist of the unauthorized use of material protected by copyright? [7]

Bingo! Now Nimmer hits the issue squarely on the head. If I want to give Joe a photocopy of the book Finnegans Wake, even though its eminent author (James Joyce) has been dead over fifty years, and even though its eminent author would be flattered and gratified that one more person was reading what he had spent seventeen years writing, I could be fined under existing Federal copyright law. That not only abridges my freedom of speech, but also abridges Joyce's speech by limiting Joyce's power to transmit information beyond the grave via a "pass-along" medium (photocopy) for a period of years. The reader will note that the First Amendment makes no distinction between "legitimate" and "illegitimate" speech with reference to property rights:

But surely, many will conclude, the First Amendment does not apply to copyright infringers. Yet, is such a conclusion justified? The language of the First Amendment does not limit its protection to speech which is original with the speaker. It provides rather that Congress shall make 'no law' abridging freedom of speech; and Justice Black used to say that this reference to 'no law' means no law "without any 'ifs' or 'buts' or 'whereases.'" If one adopts Justice Black's absolutist approach to the First Amendment it is difficult to see how any copyright law can be regarded as constitutional. [8]

Unfortunately, Nimmer once again peppers his generally sound legal reasoning with spurious, mythological premises without identifying them as such. For starters, the suppressed premise that the pronouncement of a judge can define reality (and not simply describe it). Why should we care (other than for reality-checking purposes) whether Judge Black (or any other judge) believes that "no" means "no" or that "2" means "2?" The meaning of the word "no" is not an issue that is "on the table" - the meaning of the word "no" is not an issue on which "reasonable men (or women) may disagree". It is not Judge Black's opinion of what the word "no" means that gives it its content; rather, it is the term itself.

To accept the notion that the opinion of a Supreme Court judge (or anyone else) is terminally dispositive on so unambiguous an issue as the meaning of the word "no" is to invite terminological disaster, since it implicitly endorses the idea that a contrary opinion may be legitimate; namely, that "no" does not mean "no", and that "2" does not mean "2"! However, whatever power a Supreme Court judge has, we may be sure that it is not the power to say that the word "no" means something other than "no". To reject this fact (sometimes referred to as a "view") is to flatly reject the Constitution, and, it may be added, to flatly reject the idea of language itself.

And there is yet another spurious, mythological premise operating in the background here; namely, that if you believe that "2 = 2" you have "adopted" an "absolutist" "approach". The fallacy embedded here is that the meaning of the term "2" is purely a function of the "approach" used to "interpret" it; however, it is not the approach which is "absolute", but the term. What other "approach" is possible that would turn the meaning of the number "2" to "3", or the meaning of the word "no" to "some" or "all"? To accept any other "approach" is to kill the First Amendment and to introduce new, mythological text.

Nimmer leaves this issue to highlight, correctly, the nature of the First Amendment; namely, that it is an amendment - it changes the text of the Constitution:

[I]f a completely literal reading of the First Amendment is to be made, then we must likewise recognize that the First Amendment is an amendment, hence superseding anything inconsistent with it which may be found in the main body of the Constitution. This, of course, includes the Copyright Clause.... As illuminated in Reid v. Covert (per Justice Black, incidentally): 'The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution'. Any other conclusion would, of course, render the First Amendment, as well as the remainder of the Bill of Rights, meaningless. [9]

Well said, though, alas, Nimmer once again has to throw in the red-herring of the mildly pejorative phrase "completely literal". Are we being "completely literal" when we state that the First Amendment is an "Amendment", and that it is the "First" Amendment? Yes, but we wouldn't use that language: rather, we'd say we're being accurate. Nimmer then focuses on the obvious consequence that flows from a correct analysis of the Constitution:

Doesn't the First Amendment obliterate the Copyright Clause and any laws passed pursuant thereto? This returns us to Justice Black's absolutist approach. [Irrelevant -- BK] It cannot be denied that the copyright laws do in some degree abridge freedom of speech, and if the First Amendment were literally construed, [Federal! --BK] copyright would be unconstitutional . [10]

Overall, a very sound paragraph, with one (stricken) irrelevancy and a whopping bug: it is not "copyright", which would be unconstitutional under the First Amendment, but "Federal" copyright! State copyright is perfectly permissible under the First Amendment, and so a necessary protection for intellectual property rights is present at the State level, provided that we adopt the "strict construction" interpretation of the Fourteenth Amendment the Court applied in The Slaughterhouse Cases in the previous century and never overruled (and reject the Gitlow and Near contrary interpretations in this century) to allow this intellectual property regulation to go forward. Considering the policy implications of failing to adopt strict construction of the Fourteenth Amendment (and thus failing to have any protection for intellectual property, Federal or State), this adoption is a virtual necessity, mandated by the absolute language of the First and Tenth Amendments.

As Nimmer essentially points out, the only way to allow Federal copyright law to stand is to construe the First Amendment "non-literally"; that is, to either ignore the words, or, more specifically, to interpret them in a sense contrary to that to which they refer. Once again, Nimmer's use of the term "literally construed" implies that there is some other way of construing the terms "Congress" and "no" other than "literal" (i.e., what they mean). Instantiating Nimmer's use of the phrase "literally construed", and fixing the bug in his formulation of the issue, we can see the final phrase of his last sentence as this:

If the word "no" means "no", Federal copyright law would be unconstitutional.

Well, there you have it then. Since "no" means "no", Federal copyright law is unconstitutional!

Of course, there's a small problem here: this would not be "realistic"; after all, what would The New York Times, The Washington Post, Random House, and ABC News have to say if the Supreme Court told them Federal protection of their exclusive "rights" had been nullified by the First Amendment they are constantly defending in court? That would be absurd! Therefore, "no" cannot mean "no", and so we cannot "literally construe" the First Amendment. Presto chango!

But if we reject the idea that "no = no", what is the alternative? Metaphorical interpretation? Ad hoc balancing? Definitional balancing? Interpretation by Ouija board? You be the judge!

But for reasons advanced elsewhere in this treatise, such an absolutist approach must be rejected. Instead of either an absolutist approach, or one based upon ad hoc balancing, it has been suggested that definitional balancing is to be preferred. If the definitional balancing approach is to be applied in the copyright sphere, it is necessary to draw a line between that speech which may be prohibited under the copyright law, and that speech which, despite its copyright status, may not be abridged under the command of the First Amendment. [11]

Alas, while it may be "necessary to draw a line", the First Amendment does not permit any such necessary "line-drawing". And unfortunately for the Supreme Court judges and necessity, the judges violate their oath of office when they ignore the text of the Constitution.

As you might have guessed, this is not just an abstract issue suitable only for legal scholars. The issue actually came before the Court. In that case, Smith v. California, the attorneys for the State of California hit the nail almost on the head:

There appears to be only one case in which the issue was placed before the United States Supreme Court. In that case, Smith v. California, 375 U.S. 259 (1963), the defendant had been convicted under the state obscenity statute for selling the book Tropic of Cancer. In its brief before the U.S. Supreme Court the State of California argued that copyright and the right of free speech were fundamentally inconsistent, and that '[c]onsequently, either all copyright law is invalid as an unconstitutional impingement on the rights of Free Speech and Press of those whose rights to publish and disseminate the copyrighted material are purportedly restricted by the copyright, or else any material that is copyrighted is thereby removed from the realm of Free Speech'. Brief of Respondent at 8, Smith v. California, 375 U.S. 259 (1963). The State argued for the latter alternative, claiming that one who obtained a copyright for his work thereby elected to waive the application of the First Amendment to his work. [12]

Once again, we must pull out the bug detector. It is not "all" copyright law which is invalid, only "Federal" copyright law. Still, the attorneys for the State of California perceptively noted the main issue, that publishers want to have their cake and eat it too. On the one hand, they want to claim that their copyrighted works are "speech" and therefore protected under the First Amendment; on the other, they want to simultaneously claim that their copyrighted works are not "speech", since the First Amendment does not allow speech abridgments such as copyright.

But if their copyrighted works are not speech, then they can't have First Amendment protection. And if they are speech, the First Amendment obliterates the legitimacy of the Federal law which is supposed to protect them.

Quod Erat Demonstrandum.

The Real First Amendment?

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1 1984, p. 32.
2 Benjamin N. Cardozo, The Paradoxes of Legal Science (1927). (Quoted in Nimmer on Freedom of Speech, &1672;.05[c], 2-55).
3 Other hypotheticals reveal the speech-abridging nature of copyright: a) Can Jim copyright a three-word text string, and prevent any other person from using that string in his manuscript? b) Can Time-Life, which holds the copyright to the Zapruder film, prevent CNN from airing it in a documentary on the JFK assassination? c) Can a publisher buy all existing copies of a book, burn them, declare the book out of print, and prevent anyone else from publishing them? d) Can a criminal copyright his financial records and prevent the Government from entering those records into evidence at his trial?
And there's another issue. Assume that there are 200,000,000 Americans. With Federal government banning of publication Z, 0 people are allowed to publish Z, a clear unconstitutional abridgment. Under Federal copyright law, 1 person is allowed to publish Z, and 199,999,999 are banned from publishing Z! The difference between Federal sanctioning of copyright and outright banning is less than .00005 percent. Moreover, that one person can function as a "private censor" (with government permission), and prevent the other 199,999,999 from reading the book by putting it "out of print", creating a 100% prohibition on speech with reference to that book (other than remaining copies at libraries).
4 You can find these statutes on the Web at An excellent resource, with the full United States Code.
5 Nimmer, §205 [C], 2-55-6 (subsequent quotations from Nimmer are from §205 [C]).
6 Nimmer, 2-56 (italic emphasis supplied).
7 Nimmer, 2-56.
8 Nimmer, 2-56-7, quoting Cahn, "Justice Black and First Amendment 'Absolutes': A Public Interview," 37 N.Y.U.L. Rev., 549, 553, 559 (1962). See also Beauharnais v. Illinois, 343 U.S. 250, 275 (1952) (Black, J, dissenting).
9 Nimmer, 2-57-8 (italic emphasis supplied).
10 Nimmer, 2-58 (emphasis supplied).
11 Nimmer, 2-58 -9.
12 Nimmer, 2-59 (emphasis supplied): "Justice Douglas, in dissenting from the Supreme Court's denial of certiorari in Lee v. Runge, 404 U.S. 887, 92 S. Ct. 197 (1971), observed: 'Serious First Amendment questions would be raised if Congress' power over copyrights were construed to include the power to grant monopolies over certain ideas.'" See also Nimmer, 2-63: "'The arena of public debate would be quiet, indeed, if a politician could copyright his speeches or a philosopher his treatise and thus obtain a monopoly on the ideas contained. We should not construe the copyright laws to conflict so patently with the values that the First Amendment was designed to protect,' Lee v. Runge, 404 U.S, 887 (1971) (dissenting opinion per Douglas, J.)".