WIPIP: First Amendment

Session 2: First Amendment

T.J. Chiang, George Mason University

Patents and the First Amendment

Patents on methods of communication: why isn’t this a 1A problem?  Similar to ©: can prevent other people from saying what they want to say, how they want to say it.  Eldred solution doesn’t seem persuasive: patent at the Founders’ time was nothing like this.

Printed matter: point of novelty can’t lie in printed matter, but that doesn’t really apply to the situation here (where the patent is on method of sending an advocacy message).  This isn’t content neutral because it’s a patent on a method of sending an advocacy message, not just anything.

Strict scrutiny doesn’t fit well with patents.  Would ideas of fair use, more robust printed matter doctrine, more robust abstract idea doctrine help? SCt after Bilski says it’s no longer in common law mode of making things up, but a theory with a foundation in existing doctrines might help.

Betsy Rosenblatt: different points in system to address this.  The advocacy patent: enforcement will necessarily impinge on core speech. That might best be addressed at patentability stage. What if you took the word “advocacy” out of that claim, this would be less disturbing, but maybe more abstract.  May need to address at the infringement level.

Chiang: content restrictions only end up in patents because the patentee puts them there but doesn’t really need them.  If the facial restriction allows you to enforce just against people you don’t like, that creates 1A problems. 

Q: many speech technologies are patentable—the printing press when invented, for example. The telephone. What distinguishes them?

A: not much.  Bell’s telephone claims didn’t discriminate based on content, but covered useful speech.

Edward Lee, IIT Chicago-Kent College of Law

The Freedom of the Internet

A form of popular constitutionalism: people defending/defining the internet freedoms they believe in.

Some core concepts of free speech map easily onto core 1A—no government censorship.  But questions of privacy don’t.  Also, internet governance. SOPA/PIPA protests were able to use core expectation to defend decentralized governance.  Privacy/NSA: seen much slower reaction because US doesn’t have coherent constitutional history for privacy compared to EU.

Movement’s claims aren’t all legal: political, technological. Might have to go to sui generis principles, or statutory reform to protect internet interests. 

Reasons for optimism about getting principles into positive law, but also barriers.  Obstacles include: public attention span/keeping people involved; defense is easier to mobilize than offense; rights sought are greater than classic free speech leading to mapping difficulties; different cultures/laws mean piecemeal progress; IP intersections create difficulties—once we hit balancing of interests, that’s difficult to get a determinate answer from (also true with privacy, nat’l security). Even strong pro-freedom organization proposed that copyright shouldn’t “disproportionately” interfere with freedom. 

RT: US does have history of intellectual privacy in constitutional law—NAACP, membership privacy, professors, etc.

A: yes, but it’s not as coherent.

Q: are these all equal priorities?  Equality, open architecture/internet governance, free speech, personal data, and due process are all under his sketch of “free and open internet,” but people might endorse one more than others (and related subconcepts).

A: his sense is that activists often have all these on their wishlists.

Rosenblatt: the diversity of views as a barrier to consensus.  SOPA/PIPA protests centered around the idea of fighting centralized governance, but others called it decentralized governance in that the law would give ISPs the power to control so much—delegating governance to the ISPs, even if the ISPs didn’t want it. (May depend on what you mean by governance.)

Glynn Lunney, Tulane University Law School

The Right of Publicity and the First Amendment: A Fundamental Re-Examination

1A seems like a convenient savior from overbroad IP. Turning to 1A may further expand the IP rights we seek to contract, though.

The 1A isn’t appropriate here—doesn’t get the right outcomes, draws weird lines. Means we don’t think enough about what the appropriate boundaries of the right of publicity ought to be in the first place.  Also has the effect of drawing a line in the sand; but the RoP then crowds up to the line, expands until it hits that line.

Not clear why courts are better at identifying the sorts of speech that are more fulfilling to us as individuals.  Could live with that.  But then there’s Comedy III.  Transformativeness is not a 1A value at all: there’s no 1A value in saying “hell no, we won’t go” in a different way than the protester next to me.  The line makes no sense, can’t be sensibly applied, idiosyncratic, involves lots of aesthetic choices; thought that Saderup was transformative and Tiger Woods wasn’t.  Then there’s the Electronic Arts cases, 2-1 votes finding nontransformativeness.  Then CBC case: running a fantasy baseball league is a core 1A value?  Is that really persuasive?

Zacchini: Justice White’s opinion is a straightforward definition of the right: televising the entire act would destroy its value (though he includes a footnote saying that it might not; but the only remedy that Z would have under state law was damages, and if he can’t prove them he gets nothing, so that’s a case for the RoP).  Compared to EA with realistic avatars—here’s a market, where injunctive relief is an issue, and where you need permission from 1000s of athletes or you can’t create the product you’re trying to create.  For CBC, better to argue that there should be competition in provisioning fantasy baseball instead of allowing MLB to control monopoly.  1A is a diversion from whether it makes sense to have the RoP cover certain uses.

Finally, drawing a line leads to expanding the RoP.  Copyright: Baker v. Selden—risk of saying that ideas are free is that all expression becomes property; market failures are fair use flips to no fair use where market exists.

Mark McKenna: Transformativeness makes some sense in © because you can think coherently about what it means to transform the subject of the work. But that doesn’t make sense with an identity.  If an identity is transformed, there’s no violation of the right, since the right is in the identity. 

A: agrees.

McKenna: how would courts make the decision about whether a use should be monopolized? The RoP confers a monopoly by definition.

A: fair q, but we haven’t developed that vocabulary.

Fromer: how much does this depend on RoP remaining mostly court made?  Legislatures may embrace robust definitions.

A: well, that’s Lochner.  So we tolerate when they get it wrong. 

Welkowitz: that gets sticky when you have forum-shopping (e.g., Indiana with its wide jurisdiction and 100 years, Tennessee with its perpetual protection).  This may explain why the 1A is attractive: it’s a national standard.

A: does the 1A give you uniformity?  9^th Circuit deferred to the Cal. appellate courts on scope of transformativeness.  Of course it’s right that legislatures are predictably wrong in certain areas, even economic regulation, but RoP is not unique in that regard.  Maybe choice of law matters.

RT: NB: my husband agrees that the Saderup Three Stooges are transformative: heroic presentation. Almost all 1^st A Ps will look petty; that hasn’t been much of a barrier. 

Generally: I am a fan of this argument about risks of going to the 1A/the value of pure copying.  But I think the RoP absolutely unconstitutional as applied to noncommercial speech, and unconstitutional applied to nondeceptive advertising.  So I would say that done right the 1A gives the right answers; somehow the California Supreme Court has gotten to say what the boundaries of the federal 1A are, and that’s the problem.

A: relying on the 1A distracts us from developing the doctrine within itself. (RT: but I think that’s like saying that we should be focusing on the internal limits of seditious libel—we don’t need to do that if the 1A bars enough.)

Amanda Reid, Florida Coastal School of Law

Copyright Capture: The Power of Music and the First Amendment to Set it Free

Incumbent forces have captured copyright doctrine, so the courts are the bulwark to protect us. Music is “making other people’s speeches.”  Music is a compelling case for using expression, not just ideas.  Benefits to individual: literature on value of music to help with pain management, healing, autistic children, drug abuse relapse prevention.  Music triggers the pleasure centers of the brain. Encourages empathy, creativity, nonviolence, cross-cultural education.  Protests, political change.  Music is core political and social speech.

But music today is locked up by conglomerates.  Congress is captured. The copyright ratchet is in full force.  Though the public interest is hard to define, we can at least identify sick processes/policies.  Court defers too much.  In light of capture, and in light of the value of music, the Court should engage in more searching review.  A checking function.

Unconstitutional limits: the sound recording performance complement, and the other regulations on what internet broadcasters can play. 

Definitional balancing: whether value of music outweighs gov’t interest in regulating speech.  Companies are paid royalties; broadcasters want to use actual expression; the traditional contours of copyright have been altered.

Q: is music that special?  With internet broadcasting, the argument becomes more clear, but why isn’t this argument more general?

A: because the rules are special for internet broadcasters.

Andrew Gilden: why doesn’t fair use cover the political uses and special cases?

A: the webcasting limits are additional to that, and the webcasters are paying for their uses.

Kristellia Garcia: concerned about harm.  But would this speech that you’re talking about be behind the walls? Protest songs etc. are more open.

A: but now is locked up.

Q: but many folk songs are on smaller labels.  Rhetorically: the categorization of special interests is difficult. One person’s special interest is another’s livelihood.  There are diverse viewpoints, as exemplified by this group.  (And our large corporate donations.)

Q: why isn’t antitrust a better way to go?

A: that would be a good idea/different paper.

Chien: why focus on the SCt?

A: more opportunity to move 6 people.

Rosenblatt: Is all music the same?  Music industry has captured some of the music distribution process, but copyright forbearance may end up being a big part of the way music gets used as core speech.

Rebecca Tushnet, Georgetown University Law Center

Stolen Valor and Stolen Luxury: Free Speech and Exclusivity

Warning: it’s now 3 pm to me and I still haven’t had any Diet Coke.  Started with

Breyer: “Those [other] prohibitions, however, tend to be narrower than the statute before us, in that they limit the scope of their application, sometimes by requiring proof of specific harm to identifiable victims; sometimes by specifying that the lies be made in contexts in which a tangible harm to others is especially likely to occur; and sometimes by limiting the prohibited lies to those that are particularly likely to produce harm.” Fraud statutes are an example of the first category, requiring proof of materiality, reliance, and injury. But all the interesting work happens in the second and third, where legislators decide that categories of misrepresentations, or specific contexts, make harm particularly likely.

In a footnote, the dissent made a very important point: there is a potentially big difference, for First Amendment purposes, between “each case must show individualized harm” and “the legislature can reasonably decide that a situation poses so much risk of harm that it may be banned or criminalized.”  The Court’s skepticism of blanket legislative determinations of risk ultimately produced the “clear and present danger” standard for antigovernment speech, rather than the earlier “bad tendency” test that allowed the state to punish all antigovernment speech.  But most courts still presume harm in dilution and post-sale confusion cases without any showing of actual, present harm—indeed, the standard is explicitly only that confusion or dilution must be “likely.”  The presumption that any kind of confusion or mental association is likely to cause a trademark owner harm drives many decisions.  Other speech regulations require more.  An individualized proof requirement can substantially constrain the scope of a law, and even deter unmeritorious and speech-chilling suits. 

My argument about TM law, including dilution, has two parts: (1) certain kinds of harm are not constitutionally cognizable.  Harm to reputation caused by nonfactual, nonfalsifiable speech shouldn’t be actionable—that’s the lesson of NYT v. Sullivan and Falwell v. Hustler.  (2) Even if we believe that dilution and post sale confusion can cause economic harm and that should be actionable, such harm, along with harm caused by deception is too easily presumed in TM cases.

The black-letter doctrine has long been that actual harm from confusion is so hard to show that it can simply be presumed for purposes of granting injunctive relief.   Courts rarely explore the alternative hypothesis: maybe harm is often hard to show in noncounterfeiting cases because harm is uncommon. 

As Laura Heymann noted, decisionmakers who think of reputation as something with commercial value can easily translate that belief into findings of likely harm, even without a sound factual basis.   Decisionmakers may worry that other people are more easily swayed by negative, nonfactual messages than they themselves would be, increasing a bias towards finding harm.   These problems fit into a larger literature about cognitive bias: people who dislike something are likely to consider it harmful. This poses a significant challenge for First Amendment doctrines that allow regulation when speech causes tangible harm, but disallow it when speech only causes offense.  Unpopular speech, including copying that smacks of free riding, will readily be deemed harmful.

Trademark’s property rhetoric helps insulate it from the otherwise antiregulatory thrust of modern Supreme Court jurisprudence.  To the hierarchical individualists who dominate there, free riding for profit will appear more harmful than buying politicians for profit: one is use of legitimately obtained power (hierarchy) and one is illegitimate use of another’s reputation (defying hierarchy).  In the case treated as completely sensible by every opinion in Alvarez, the Court found the Amateur Sports Act’s prohibitions on unauthorized uses of the Olympic marks to be a reasonable way to protect the USOC’s “legitimate property right.”   The Court held that Congress could reasonably have determined that an explicit likelihood of confusion requirement is unnecessary because most commercial uses of the Olympic marks are likely to be confusing or at least to harm the distinctiveness of the marks (that is, to dilute them).   It did not examine the evidence Congress had used to conclude that these were real problems. 

When the supposed property rights of a respected institution are not implicated by a government regulation, by contrast, the Court is likely to scrutinize the evidentiary record with greater care.  Alvarez is but one example.  In Brown v. Entertainment Merchants Association, the Court was much more skeptical about the link between violent video games and increased aggression in minors, despite dozens of studies supporting a link.   Likewise, the Court demanded much more in the way of proof of a connection between speech and harm when striking down a ban on “virtual” child pornography.   The common-sense claim that sexual images of unreal children will lead viewers to act against real children seems no more tenuous than the claim that a local business’s use of “Victor’s Little Secret” could someday lead to fewer purchases from Victoria’s Secret, especially since the latter is explicitly framed as a mere likelihood of dilution and dilution’s harm is always posited to occur sometime in the future.

Judges’ preconceptions about harm are likely to present great barriers to change, unless and until advocates can retell the stories of infringement and dilution and show how they are more like claims to avoid offense than they are like claims to avoid injury from defamation.

Recent developments after eBay hold out some hope for more serious interrogation of trademark’s harm stories.  In 2013, the Ninth Circuit held that “cursory and conclusory” invocations of irreparable harm, not based in any specific evidence before a court, would be insufficient to justify an injunction.  Further, “citation to a different case with a different record does not meet the standard of showing ‘likely’ irreparable harm.”   Applying this case, a district court then rejected the argument that confusion about plaintiffs’ responsibility for the defendant’s product could harm the plaintiffs’ reputations when defendant delivered a shoddy product.  Although this “lost control over reputation” theory has long been accepted by courts as a reason that consumer confusion is always harmful, the district court pointed out a logical and factual gap: plaintiffs didn’t provide any evidence of shoddy manufacturing, making their theory of irreparable harm “purely speculative.”   While presented as a matter of equitable principles, this demand for an individualized, evidence-based showing of harm can also be speech-protective.

The challenge is now to go beyond that inquiry, which is limited to the injunctive relief aspect of a case, and look at TM harm more generally.

Gilden: eBay insulates harm from the doctrine itself.  Is the proposal to have a more robust 1A defense?

Lunney: do we need to push back given difficulty of getting damages? If we have eBay working.

Ochoa: how much attributable to likelihood language in statute?

Calboli: harm to legit interest of proprietor is the int’l standard.

Said: actual malice as a limiting standard?

RT: difficulty is actual malice about what?  The Rolling Stone tobacco case shows the difficulty if the actual malice isn’t malice about whether some fact is true, which is a comparator in the world we have.  Actual malice about whether something’s an ad or is free riding different?

McKenna: either Congress can decide wholesale on one extreme or you have to do it retail. Likelihood language is challenging.  Middle: congress doesn’t get to decide it’s harmful generally, but a court has to find that this kind of confusion, if happening, is likely to cause harm.

Chiang: how does Alvarez fit into this? What if Alvarez is wrong, and dilution is also ok?

Rosenblatt: Many times Congress decides something is harmful when it might not be. Patent infringement too.  (eBay is not a constitutional standard.)  We don’t want TM to be one of those situations.

RT: and now we’re back to Lochner & footnote 4.

Q: how do you think of dilution’s history? Cts were skeptical at first.