Monday, January 09, 2012

Court thinks that commercial speech is any speech that's sold

People v. Douglas, --- N.W.2d ----, 2011 WL 6846218 (Mich. App.)

Douglas was charged with “copying audio/video recordings for gain.” The trial court dismissed the case because the statutory term “prominent place” was unconstitutionally vague. The prosecution appealed.  The relevant statute stated that “[a] person shall not ... [s]ell, rent, distribute, transport, or possess for the purpose of selling, renting, distributing, or transporting, or any combination thereof, a recording with knowledge that the recording” does not “contain in a prominent place on its cover, box, jacket, or label the true name and address of the manufacturer.”  The court of appeals reversed, completely misunderstanding the definition of “commercial speech” under the First Amendment when it said that it was “confin[ing] the scope of the statute to commercial speech to eliminate its application to activities that the First Amendment protects.”  I hope this gets fixed on appeal. 
Douglas was arrested in possession of DVDs marked with handwritten titles of movies still playing in theaters. He had two CD/DVD burners, 334 counterfeit CDs and DVDs, and 100 blank recordable disks.  Neither the DVDs nor the CDs contained any written information on them besides the handwritten titles. 
The trial court thought that a legitimate DVD doesn’t really have the manufacturer’s information in a “prominent” place on the box, and thus that the law created far too much uncertainty and discretion and was void for vagueness. 
The court of appeals applied the standard that a statute must be construed as constitutional unless clearly unconstitutional.  Vagueness occurs when a statute doesn’t provide fair notice of the proscribed conduct; confers unstructured and unlimited discretion on the trier of fact, and is overbroad with respect to First Amendment rights. 
Douglas needed to show facts suggesting that he complied with the statute and argue that “prominent place” was vague.  He failed to do the former, so he didn’t show that vagueness in the term caused him to violate the statute. Since his discs made absolutely no attempt to convey the required information, any possible vagueness was irrelevant.  Moreover, “prominent place” provided adequate notice.  The Random House Webster’s College Dictionary definition of “prominent” indicated that the statute required the manufacturer’s true name and address “to be on a particular portion of the cover, box, jacket, or label so that the information will stand out and be easily seen. This language is sufficiently clear to provide notice of what the statute requires.” 
Even if the statutory language were vague, it didn’t impermissibly confer discretion on the trier of fact.  The law “clearly and plainly sets forth the elements that the prosecutor must prove beyond a reasonable doubt,” and thus didn’t leave the jury with unlimited discretion.  The prosecution has to prove that a defendant sold, rent, distributed, transported, or possessed for those purposes, a recording with knowledge that the recording didn’t have the required prominent information.  The knowledge requirement “substantially limits the potential reach of the statute because, in general, only illegitimate manufacturers and distributors of these materials will have actual knowledge that the items they sell or deal in do not contain the required information,” with the exception of a person distributing “original recordings to spread a message,” to be taken up shortly.  “Thus, the innocent resale of legitimately bought items would generally not violate the statute even if the manufacturer had failed to place the required information on the item, because the seller would lack such knowledge.”  (There seems to be equivocation about “knowing” here.  If the information is not prominent on the recording and the seller looks at the recording, how does the seller not necessarily know that the information is not prominent?  The seller may not know she’s violating the law, but I sincerely doubt Douglas knew of this specific law either.  Which is why, by the way, this is really a copyright infringement law and should be found preempted, since its extra element only narrows the class of infringements covered by the state law.) 
Overbreadth: the standing requirement is relaxed when First Amendment rights are involved.  Here, the statute regulated both speech and conduct.  Reasonable minds would agree that selling, renting, distributing and possessing recordings is conduct.  (If money is speech, why isn’t selling speech also speech?  With the inclusion of possession, any tangible residue of speech is conduct by this reasoning, and regardless of the overall incoherence of the speech/conduct distinction, this just doesn’t make sense.) 
Overbreadth, however, does not apply to commercial speech.  And here’s the plain error: commercial speech, as the court means it here (that category of speech to which the overbreadth doctrine does not apply) is speech proposing a commercial transaction: advertising.  It is decidedly not speech that is sold in the market.  If it were, the New York Times (our go-to example of core protected speech) would not be able to invoke the overbreadth doctrine for its articles, which it plainly can.  The court of appeals went on to dig itself deeper: “In essence, the law presumes that the economic incentive to speak will outweigh the chilling effect a law may have, removing any need to allow a party to raise the rights of third-parties not before the court.”  Kind of like in NYT v. Sullivan
Here, the statute regulates both commercial and noncommercial activity (read: speech).  Selling and renting are commercial, but distribution and possession for the purpose of distribution don’t have to be.  Thus, the statute “regulates substantially more noncommercial speech and conduct than its plainly legitimate sweep allows.”  Talley v. California, 362 U.S. 60 (1960) struck down a law prohibiting the distribution of any handbill that didn’t contain the writer/printer’s name.  This impermissibly restricted anonymous speech, as did the law here. 
The court of appeals continued, “CDs and DVDs today spread information in a way similar to the hand-bills and pamphlets so common in England and colonial America. People can, and do, create and record original commentaries, speeches, documentaries, and other political and social media on CDs and DVDs. Because of their audio and visual format, these recordings may be even more effective in evoking a reaction than the printed form.”  The law was designed to prohibit piracy.  (Again, which is why it’s preempted.)  As written, however, it applied to “the innocent distribution of original recordings containing political messages, social commentary, and countless other noncommercial recordings.”  (Note, however, that if you want to sell your self-published CD or DVD, you’re subject to the law.  Whoops!) 
Construing the law narrowly to save it, the court limited the statute to cases in which a person commercially distributed a recording or possessed it for commercial distribution.  I hate to harp on this, but that doesn’t mean anything like the court’s next sentence: “This limitation adequately restricts the sweep of the statute to commercial speech, which the state may regulate more broadly.”  This statute could possibly be constitutional if not preempted—though I can imagine underground publishers with political things to say who don’t want a public paper trail and have a decent First Amendment argument against being required to put their names on every copy—but the reason given is aggravatingly wrong.  And the court makes this even clearer in a footnote:  “Limiting the statute to only commercial speech allows innocent distributors of original works to give away their original recordings and removes a potential First Amendment violation.”  No, because one is generally not required to stay out of the world of paid content in order to exercise one’s free speech rights.  Even copyright’s fair use doctrine treats noncommerciality as only one factor, and commerciality is easily outweighed by transformativeness. 
Anyway, Douglas could only be prosecuted if the state showed that he possessed the recordings for the purpose of commercial distribution. 

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