May 17, 2011 · · Comments Off

Did you hear that Florida just outlawed sex?

This was pointed out by Southern Fried Scientist, after reading of a Florida bill that prohibits “knowing sexual conduct or sexual contact with an animal.” Humans are, after all, animals, so by definition, Florida has just made normal sexual relations a crime.

Obviously, that’s not what happened. As Rick Hasen at Election Law Blog points out, “A court facing a question of interpreting the statute would almost certainly read the statute’s use of the term ‘animals’ as ‘non-human animals,’ both to avoid absurdity and to conform with (1) the intent of the drafters; (2) the purpose of the statute; and (3) a commonly used (if scientifically inaccurate) understanding of the term ‘animal’ to exclude humans.”

But it does provide a good example of language in the law. Law, in many respects, is semantics. It is based on words written down in constitutions, statutes, and court opinions, and shaped by how courts, lawyers, and the public interpret those words.

Underneath the veneer of the plain meaning of language in law is a mass of complex and sometimes inscrutable precepts. Hasen, above, advances three such precepts to explain why ‘animal’ doesn’t include humans in the Florida law. To a lawyer, understanding how language works in law is second nature, but to the layperson, much of it may seem like “the art of the puzzling and confounding.”

Law professor Frederick Schauer describes this better than I do:

There are times when law uses language of its own making, often in  Latin — replevin, assumpsit, quantum meruit, habeas corpus, res judicata — and sometimes even in English—bailment, demurrer, due process, joinder, interpleader, easement. Such terms have little if any meaning for the layperson, but they can still have plain meanings in law and for lawyers and judges. So as long as one believes in anything close to plain or literal meaning at all, such terms, when used inside the legal world, do not present special problems. Like the words of ordinary language, the meaning here is determined by the rules of use of the relevant linguistic community, but here that community is the community of legal actors rather than the men on the Clapham omnibus.

Things become somewhat more problematic, however, when terms have both ordinary and technical legal meanings. We know that ‘due  process’ in the Fifth and Fourteenth Amendments has a legal/constitutional meaning with no ordinary counterpart. The  women on the D train are no more likely ever to use the term than are the men on the Clapham omnibus. But the same does not hold true for ‘speech’ and ‘religion’ in the First Amendment or ‘arms’ in the Second or ‘searches’ in the Fourth. Here there are both ordinary and legal meanings, and the question is about the relation between them. So too outside of constitutional law, where words such as ‘trespass,’ ‘complaint,’ and even ‘contract’ have legal meanings that diverge from their nonlegal ones.1

When is content not content?

What does this have to do with copyright?

Well, some critics of the law base their objection on the premise that copyright protection infringes on the freedom of speech.2 A few — certainly not all — of these criticisms are based on the following line of thought: copyright law regulates content, content-based regulations presumptively violate the First Amendment, therefore much of copyright law is unconstitutional.

One recent example is from a paper by Andrew Sellars, who wrote, “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed.”3 (I don’t mean to single out Mr. Sellars, I only highlight this quote to provide an example of the argument.)

The Supreme Court, of course, rejected the classification of copyright as even a content-neutral regulation — which, in First Amendment parlance, still merits a higher standard of review than general laws.4 But, looking at the language being used, how can this be? How can copyright law restrict content yet not restrict content?

The answer lies in understanding how language is being used. Law professor Marc Greenberg explains:

The strength, and weakness, of this argument lies in the definition of the term ‘content’ in the Free Speech context, in the context of judicial interpretations of the First Amendment, and in the copyright context.  I submit that content in the free speech context refers both to the ideas a speaker presents, and the language or other expressive means used to present that idea.  For courts applying the term ‘content’ in a strict scrutiny context seeking to determine if a statute violates the First Amendment by banning certain works, the term ‘content’ is focused on the ideas expressed, and not on the means of expression used. Finally, copyright, in particular infringement cases, focuses purely on the means of expression used, since the statute expressly precludes protection for ideas. The Critics seek to use the free speech definition as a basis for challenging copyright—arguing under this definition that since copyright clearly ‘deals’ with content, it is a content-based law which requires strict scrutiny and a bias in favor of finding that it violates First Amendment protections.  The problem with this approach is that content, when subject to any copyright law analysis, only pertains to expression, and therefore the claim that for constitutional purposes it means more than that is erroneous. Professor Baker supports the Critics’ view by suggesting that under a strict scrutiny analysis, warranted because copyright deals with content, the market incentive concerns underlying copyright do not rise to the level of a compelling government concern, and proposes that perhaps those concerns can be addressed by less restrictive means. He writes: “If content must be examined to determine if a law is violated then the law is content based.” Does  this  mean that reporting a theft of art from your home, in which the police must have a description of the art, means that art theft is a content-based law?  Similarly, in a case of the theft of a rare book, a description of the book, the art on the cover, and its subject matter is required—does this make the theft law subject to a content-based strict scrutiny?  Additional examples from art and music illustrate the problems with this approach.  A copy of a musical piece focuses on the sequence of notes, not the underlying melody or musical concept embodied in the piece.  A derivative copy of a piece of artwork repeats elements of the composition, not the content, consisting of the concept of the piece.

The question that should be asked is whether the restriction on content found in copyright law really abridges someone’s freedom of expression and whether there is a fair policy in saying that anyone is free, for example, to paint a portrait.  However, they are not free to take someone else’s property, their painting of a portrait, and use that for their own benefit.  Interestingly enough, what this argument does is turn one of copyright’s attributes, the ability to reuse the work via copies without diminishing it, against the creator.  There is no question that if I wanted to paint a portrait, and saw a similar portrait you did on your wall,  that I cannot, in my expression of free speech, come into your house, take your painting, cut out the face in it, and put it in my painting.  But because art in the digital world can more easily be reproduced through mechanical means, suddenly it is a violation of your freedom of expression to take a copy of the work, which is sold with the express understanding that it may not be used by you, and use it for your own purposes, be they commercial or noncommercial.5

This point shouldn’t be dismissed as merely arguing semantics. It’s important to make the distinction between “content” in the ordinary sense of the word and “content” in the First Amendment sense of the word. And not because it lets copyright law escape constitutional protections.

How does copyright deal with content?

The First Amendment protects against government control over “content” in the ordinary sense.

At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions “rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.”

For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. (Citations removed).6

The Supreme Court has developed doctrines to test whether general laws violate the First Amendment. These doctrines aren’t applied to copyright law — not because it is immune from First Amendment scrutiny, but because copyright law’s own “built-in free speech safeguards” already account for First Amendment analysis. And these safeguards mirror the tests developed by the Court surprisingly well.

When you recognize “content” as the ideas conveyed by a speaker, and recognize that a government cannot generally suppress these ideas, you see that copyright law already accounts for this through the idea/expression distinction — the law only protects the specific expression of an idea, not the idea itself.

Traditional First Amendment jurisprudence recognizes that laws that don’t specifically target the “content” of speech may nevertheless violate free speech principles. Such laws are typically analyzed under the test set out and explained by the Supreme Court in US v. O’Brien:

We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O’Brien can be constitutionally convicted for violating it.7

Copyright’s analogue to the O’Brien test is found in the fair use doctrine. That is, when does copyright law allow the speech that is made with the normally prohibited conduct of copying another’s expression?

Like O’Brien, courts use a balancing test. The balancing test is the familiar four-part fair use analysis, which looks at: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”8

Implicit in the fair use factors are the same prerogatives of the O’Brien test. Along with the preamble, enumerating several purposes of fair use, the factors guide courts in considering whether a specific use promotes the progress of the useful arts. The qualitative and quantitative factors, along with the effect on the potential market, ensure that the restriction on using copyrighted expression is no greater than necessary to promote that progress.

I’ve talked a lot about the intersection of free speech and copyright on this site. The notion that the two areas of law are in conflict should be put to rest — I’ve even advanced the notion that copyright helps expand free speech rights. A careful analysis of the language we use, and how legal doctrines incorporate that language, show that the two are wholly consistent with the values that underlie our concept of what a free and just society should embody.


  1. A Critical Guide to Vehicles in the Park, 83 New York University Law Review 1109, 1123 (2008). []
  2. See Copyright and Censorship, note 17, for an inexhaustive list of such criticisms. []
  3. Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names (May 8, 2011). []
  4. Eldred v. Ashcroft, 537 US 186, 218-19 (2003). []
  5. Reason or Madness: A Defense of Copyright’s Growing Pains, 7 John Marshall Review of Intellectual Property Law 1, 15-16 (2007). []
  6. Turner Broadcasting System v. FCC, 512 US 622, 641-42 (1994). []
  7. United States v. O’Brien, 391 US 367, 376-77 (1968). []
  8. 17 USC § 107. []

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