Empty Formalism in Golan and Eldred

One myth should be exploded about the Court’s analysis of the relationship between the Copyright Clause and the First Amendment. In both Eldred and Golan, Justice Ginsburg says that heightened scrutiny of copyright statutes on free speech grounds is not required because the “idea/expression” dichotomy and the “fair use” doctrine protect the First Amendment interest. As long as Congress does not disturb those “traditional contours” of copyright protection, there isn’t a constitutional problem.

The problem with that point is that the idea/expression dichotomy is almost never used to invalidate a copyright, and fair use is only rarely enforced.  A functional (dare I say pragmatic?) approach would recognize this fact and conclude that these Potemkin safeguards are totally inadequate for the First Amendment interest at stake.  Protecting the public domain from congressional poaching would be much more effective, but that just went by the boards.

 

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8 Responses

  1. Joe says:

    “functional (dare I say pragmatic?) approach”

    that got two votes … unfortunately

  2. Orin Kerr says:

    Gerard,

    Your reaction to Golan reminds me a little of how some of the mandate opponents reacted to the opinions of Judge Sutton and Judge Silberman upholding the mandate.

    In both contexts, the courts nod to the idea of limited government, but in fact rule that Congress has nearly plenary authority. Surely this can’t be, opponents claim: such Potemkin safeguards are totally inadequate for the vital constitutional interests. The Court should protect the traditional domain of preserved freedom from congressional poaching — which just went by the boards. On the other side, they argue that while this may potentially be a strong *policy* argument, it is very hard for courts to draw that line — justifying deference to the elected branches.

  3. Gerard Magliocca says:

    That’s true as far as the Copyright Clause goes, but what about the First Amendment? If you think that heightened scrutiny applies to copyright laws just as it would to any other statute regulating speech, then there would be no deference to the elected branches.

  4. Joe says:

    Yes, the two are comparable in a shallow sense, ignoring the 1A issue, which here is directly involved and discussed, unlike the concern about eating brocooli which is not at stake. There is also no poor exception here so that people with not much money need not pay copyright fees. So the reach is different.

    And, Lopez & Morrison alone both show limits to the CC that provide a limit w/o overruling a law that unlike there is clearly economic in nature. See also, the concurring opinion to the Silberman opinion.

    As to line drawing, determining how such and such a thing is not economic enough to fit into the CC is a lot harder than the public domain issue here. Or even expanding the terms as in the previous case. One is a balancing matter, the other draws specific lines. The lines might be open to debate, but they are clearer in this context.

  5. Orin Kerr says:

    Gerard:

    **************
    That’s true as far as the Copyright Clause goes, but what about the First Amendment? If you think that heightened scrutiny applies to copyright laws just as it would to any other statute regulating speech, then there would be no deference to the elected branches.
    **************

    And similarly, the challengers to the mandate are really making a Due Process argument, albeit formally expressed as a Commerce Clause argument, for which there should be no deference to the elected branches.

  6. Gerard Magliocca says:

    Well, no. They aren’t making a Due Process argument because they aren’t saying that states cannot impose an individual mandate.

  7. Orin Kerr says:

    That’s not the form of their argument, as I said, but doesn’t every one think that it’s a wanna-be Due Process argument being pitched as a Commerce Clause argument?

    Cf. http://volokh.com/2010/12/17/two-variations-on-could-the-government-make-you-buy-a-gm-car/

  8. Gerard Magliocca says:

    Sure, I agree with that, but there’s a big difference between that and an actual first First Amendment claim (in Eldred & Golan) that was rejected on the merits.