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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