Last week I began writing about the unexplored history surrounding copyright law and the First Amendment. To sum up: in the past four decades, there has been a lot of scholarship concerning a potential conflict between the Copyright Clause of the US Constitution and the free speech and press protections of the First Amendment. Since then, courts have also dealt with the interplay of the two — most notably the Supreme Court in Eldred v. Ashcroft.

But before than — nothing. Nearly two whole centuries passed from when the Copyright Clause and First Amendment became the law of the land until Melville Nimmer wrote Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press? in 1970.

History gives us very little reason why this is. Discussion and debates surrounding First Amendment’s adoption are “void of any reference to its relationship with provisions of the original Constitution such as the Copyright Clause.” 1Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 n.28 (2010).

As a result, most of the academic attention on the subject has relied on things other than history to examine the perceived conflict. Courts too — Eldred devoted only two sentences to the history of the two clauses: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.”

I think history can shed some light on this “unbroken practice” of copyright and free speech coexisting. 2To be clear: right now I’m only seeking to describe the historical relationship between copyright and free speech, not make any arguments about how courts and policy makers should treat the relationship today. I think history can inform the approach to that relationship, but I don’t want to give the impression that I’m arguing that “this is how it was, so this is how it should always be.” Last time, I noted that one of the reasons that may explain why little was said on the subject for nearly two centuries was that a copyright was generally conceived of as a property right, and the liberty of the press did not extend to invasions of property rights.

Is Copyright Law Unconstitutional?

Today, I want to point out a specific claim that is not supported by history.

In a recent post, Stephan Kinsella puts out a version of the claim:

Clearly copyright is form of censorship. Clearly the First Amendment prohibits federal censorship laws. So: the First Amendment later, and thus implicitly repealed the copyright clause. Or at least the copyright act–the way it’s implemented to permit books to be banned and movies burned.

The more I think about this, the more I think it’s correct. There is a tension between copyright’s censorship, and the free speech and free press protections in the First Amendment (as there is a “tension” between antitrust and IP law). But since the free speech provisions came later, in case of conflict, they prevail. Copyright has to go. It is unconstitutional.

Kinsella is not the first to say this. For example, this is from a 1986 law review article: “Arguably, then, the [Copyright] Act is unconstitutional, since the free speech guarantee is an amendment which supersedes prior inconsistent constitutional text.” 3David E. Shipley, Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises, 1986 BYU Law Review 983, 985 (1986).

Other free speech critics of copyright law, while not adopting the view that the First Amendment rendered the Copyright Clause unconstitutional, use the timing of the two provisions to raise uncertainty in the arena. 4See, for example, Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 (2010). In general, however, speculation concerning the constitutional firmity of Congress’s copyright power is a minority view. 5“The view of the First Amendment entirely displacing the earlier text is universally rejected, I think properly, as to copyright.” C. Edwin Baker, First Amendment Limits on Copyright, 55 Vanderbilt Law Review 891, 893 (2002).

Respected constitutional scholar William W. Van Alstyne points out that “certainly nothing on [the First Amendment’s] face suggests that it in any respect ‘amends’ (that is, displaces) [the Copyright Clause].” 6Reconciling What the First Amendment Forbids With What the Copyright Clause Permits: A Summary Explanation and Review, 66 Law and Contemporary Problems 225, 226 (2003). Later amendments don’t repeal Constitutional provisions unless the repeal is explicit (as with the Twenty-First Amendment) or self-evident (as with the Seventeenth Amendment). 7See Joseph Blocher, Amending the Exceptions Clause, 92 Minnesota Law Review 971, 980-82 (2008).

Freedom of the Press and Copyright Before the Constitution

But there’s an even more compelling reason why the subsequent adoption of the First Amendment wouldn’t have or wasn’t intended to impact Congress’s copyright authority at the time.

Twelve of the original thirteen US states (Delaware was the lone exception) adopted copyright acts between 1783 and 1786 — before the current Constitution replaced the Articles of Confederation.

Of those twelve colonies, five of them provided for the freedom of the press in either their state constitutions or separate bills of rights before passing their own copyright laws: Virginia, 8“XII That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.” Virginia Declaration of Rights, June 12, 1776 (Virginia Copyright Act, October 1, 1785). Pennsylvania, 9“XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.” Pennsylvania Constitution of 1776, Declaration of Rights, September 28, 1776 (Pennsylvania Copyright Act, March 15, 1784). Georgia, 10“Article LXI. Freedom of the press and trial by jury to remain inviolate forever.” Georgia ConstitutionFebruary 1777 (Georgia Copyright Act, February 3, 1786). South Carolina, 11“XLIII. That the liberty of the press be inviolably preserved.” Constitution of South Carolina, March 19, 1778 (South Carolina Copyright Act, March 26, 1784). and Massachusetts. 12“Article XVI. The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth.” Constitution of the Commonwealth of Massachusetts, October 25, 1780 (Massachusetts Copyright Act, March 17, 1783).

Two of the colonies did not enact freedom of the press clauses until after passing their own copyright acts 13New Hampshire — “Article 22. The liberty of the press is essential to the security of freedom in a state: It ought, therefore, to be inviolably preserved.” New Hampshire Constitution, June 2, 1784 (New Hampshire Copyright Act, November 7, 1783); and North Carolina —  “16. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.” North Carolina Ratifying Convention, Declaration of Rights and Other Amendments, August 1, 1788 (North Carolina Copyright Act, November 19, 1785). while the remaining five did not include “bill of rights” style provisions in their constitutions prior to the ratification of the US Constitution. 14Connecticut, which passed the first colonial copyright act, operated under the 1662 Charter of the Colony of Connecticut until 1818. Rhode Island similarly operated under its 1663 Royal Charter until it adopted a constitution in 1842. Maryland, New Jersey, and New York did not expressly mention freedom of the press in their original constitutions.

So by the time delegates arrived to draft the US Constitution, over one third of the states had enacted copyright legislation after providing for freedom of the press. This lends solid support to the idea that early US copyright law was perceived as being wholly consistent with the guarantee of a free press.

References   [ + ]

1. Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 n.28 (2010).
2. To be clear: right now I’m only seeking to describe the historical relationship between copyright and free speech, not make any arguments about how courts and policy makers should treat the relationship today. I think history can inform the approach to that relationship, but I don’t want to give the impression that I’m arguing that “this is how it was, so this is how it should always be.”
3. David E. Shipley, Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises, 1986 BYU Law Review 983, 985 (1986).
4. See, for example, Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 (2010).
5. “The view of the First Amendment entirely displacing the earlier text is universally rejected, I think properly, as to copyright.” C. Edwin Baker, First Amendment Limits on Copyright, 55 Vanderbilt Law Review 891, 893 (2002).
6. Reconciling What the First Amendment Forbids With What the Copyright Clause Permits: A Summary Explanation and Review, 66 Law and Contemporary Problems 225, 226 (2003).
7. See Joseph Blocher, Amending the Exceptions Clause, 92 Minnesota Law Review 971, 980-82 (2008).
8. “XII That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.” Virginia Declaration of Rights, June 12, 1776 (Virginia Copyright Act, October 1, 1785).
9. “XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.” Pennsylvania Constitution of 1776, Declaration of Rights, September 28, 1776 (Pennsylvania Copyright Act, March 15, 1784).
10. “Article LXI. Freedom of the press and trial by jury to remain inviolate forever.” Georgia ConstitutionFebruary 1777 (Georgia Copyright Act, February 3, 1786).
11. “XLIII. That the liberty of the press be inviolably preserved.” Constitution of South Carolina, March 19, 1778 (South Carolina Copyright Act, March 26, 1784).
12. “Article XVI. The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth.” Constitution of the Commonwealth of Massachusetts, October 25, 1780 (Massachusetts Copyright Act, March 17, 1783).
13. New Hampshire — “Article 22. The liberty of the press is essential to the security of freedom in a state: It ought, therefore, to be inviolably preserved.” New Hampshire Constitution, June 2, 1784 (New Hampshire Copyright Act, November 7, 1783); and North Carolina —  “16. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.” North Carolina Ratifying Convention, Declaration of Rights and Other Amendments, August 1, 1788 (North Carolina Copyright Act, November 19, 1785).
14. Connecticut, which passed the first colonial copyright act, operated under the 1662 Charter of the Colony of Connecticut until 1818. Rhode Island similarly operated under its 1663 Royal Charter until it adopted a constitution in 1842. Maryland, New Jersey, and New York did not expressly mention freedom of the press in their original constitutions.

7 Comments

  1. >>>The more I think about this, the more I think it’s correct.

    This is so persuasive that I am convinced!

  2. The tension between Article 1, Section 8, Clause 8 and the First Amendment was reconciled so long ago by the Supreme Court that I must question Mr. Kinsella’s constitutional premise. His simplistic argument that the First Amendment takes precedence because it came later in time ignores completely the longstanding doctrine that provisions in the constitution are to be read so as to avoid the very interpretation he proffers in his comments you quoted.

    While certainly not controlling, it is useful to ponder one of Jefferson’s proposed amendments for inclusion it the Bill of Rights that explicitly recognized what are now patents and copyrights, and then called for specific time limits associated with each. Even Mr. Jefferson recognized that his “tapir to tapir” comment, made many years later in his letter to Issac McPherson did not render Congress’ s Article 1 power of no moment and effect as Mr. Kinsella so hamfistedly advocates.

  3. Of those twelve colonies, five of them provided for the freedom of the press in either their state constitutions or separate bills of rights before passing their own copyright laws: Virginia,8 Pennsylvania, Georgia, South Carolina, and Massachusetts. Two of the colonies did not enact freedom of the press clauses until after passing their own copyright acts while the remaining five did not include “bill of rights” style provisions in their constitutions prior to the ratification of the US Constitution. So by the time delegates arrived to draft the US Constitution, over one third of the states had enacted copyright legislation after providing for freedom of the press. This lends solid support to the idea that early US copyright law was perceived as being wholly consistent with the guarantee of a free press.

    That is a great argument.

    The whole idea that the First Amendment repealed the Copyright Clause is silly. If that were so, how could it have taken two centuries for people to realize it? The original Copyright Act of 1790 would have been repealed. Instead, it was enforced and nobody (including all those involved with the passage of the Bill of Rights) said a word or thought anything of it.

  4. There is a maxim of interpretion that ‘generalia specialibus non derogant’ – see here http://en.wikipedia.org/wiki/Statutory_interpretation.

    I don’t know how far this has been applied to the US Constitution, but it seems a sound general principle.

  5. Congrats on making the top 100 law blog in the ABA Journal’s annual survey!

  6. I’ll preface my comment by saying I’m an outsider looking in on US constitutional law. Does a law’s repeal not have to be explicit when passing an amendment?

    I view copyright as a protection for free speech. Asserting one’s ownership over a given expression is an awfully powerful declaration of freedom, isn’t it?

    And looking at from the other side, a University of Toronto academic recently suggested (Copyright Infringement as Compelled Speech
    ) NOT protecting copyright is equivalent to forcing someone to speak, which I believe is also unconstitutional.

  7. Pingback: Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 3 | Copyhype

  8. Pingback: Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 4 | Copyhype

  9. Pingback: Copyright is Unconstitutional

  10. Interesting post. I have replied with an update to my original post — http://c4sif.org/2011/11/copyright-is-unconstitutional/

    As for some of the comments above:

    M. Slonecker: “The tension between Article 1, Section 8, Clause 8 and the First Amendment was reconciled so long ago by the Supreme Court that I must question Mr. Kinsella’s constitutional premise. His simplistic argument that the First Amendment takes precedence because it came later in time ignores completely the longstanding doctrine that provisions in the constitution are to be read so as to avoid the very interpretation he proffers in his comments you quoted.”

    I am not a legal positivist, so don’t think state pronouncements on matters mean they are right. I agree that a maxim is to try to interpret laws so that they are compatible but in this case it cannot be done. The way copyright causes censorship is obvious. Imagine there was no copyright clause, and today congress enacted a copyright law–
    the ACLU (rightfully) would be screaming about how this is manifestly unconstitutional as a violation of the first amendment. So the only way it’s saved is if the Constitution authorizes it. It does–but it did so in 1789. The First Amendment came in 1791. I can’t see how people can ignore this 2 year time difference as if it does not exist.

    As for maxims–how about Randy Barnett’s presumption of liberty, or some other pro-justice maxim? In case of doubt, side with the interpretation the best preserves justice. And in this case, it means siding with free speech over copyright-censorship.

    “While certainly not controlling, it is useful to ponder one of Jefferson’s proposed amendments for inclusion it the Bill of Rights that explicitly recognized what are now patents and copyrights, and then called for specific time limits associated with each.”

    Yes and this would have been in the Bill of Rights, so presumably ratified at the same time as the First Amendment, so there would be no superseding argument. But his amendment was not taken up.

    ” Even Mr. Jefferson recognized that his “tapir to tapir” comment, made many years later in his letter to Issac McPherson did not render Congress’ s Article 1 power of no moment and effect as Mr. Kinsella so hamfistedly advocates.”

    My argument against IP is not ultimately legal or constitutional. It is moral and economic. Jefferson was confused on the issue as are most people. Some of his arguments get a glimpse of the truth, such as the taper comment. If he had followed it consistently then he would see that it implies all property in non-scarce resources is illegitimate.
    “… over one third of the states had enacted copyright legislation after providing for freedom of the press. This lends solid support to the idea that early US copyright law was perceived as being wholly consistent with the guarantee of a free press.

    ‘That is a great argument.”

    It only shows that people thought these laws were compatible. Not that they were.

    “The whole idea that the First Amendment repealed the Copyright Clause is silly. If that were so, how could it have taken two centuries for people to realize it?”

    Because they were and are still today confused about the nature of IP, in part because of propaganda slapping the term “property” on these state grants of monopoly privilege. I mean why did it take 100 years to outlaw slavery?

    “The original Copyright Act of 1790 would have been repealed. Instead, it was enforced and nobody (including all those involved with the passage of the Bill of Rights) said a word or thought anything of it.”

    Ironically, the same people that favor the Constitution and copyright law tend to think the Bill of rights applies also to the states, which it does not. So they gloss over the fact that states had established religions in 1791, at the time of the enactment of the first amendment.

  11. Pingback: Copyright is Unconstitutional: Update