No Law: Intellectual Property in the Image of An Absolute First Amendment

By David L. Lange; H. Jefferson Powell | Go to book overview

CHAPTER 5

Foreshadowings: International News Service
v. Associated Press

THE YEAR WAS 1918. For the purposes of our study, no more significant moment had appeared since the founding of the Republic. As a practical matter the early twentieth century was a time of growing appreciation for the values reflected in both intellectual commerce and freedom of expression; it was also a time when the expectations and entitlements each might have of the other remained ill defined and formally immature. Within the year, however, a single decision in the United States Supreme Court, touching upon the subject of unfair competition in the newspaper business, but decided against the backdrop of a world at war, would suggest the conditions of their coexistence in the century ahead. That decision is the subject of this chapter.1

The First Amendment had yet to be construed by the Supreme Court as 1918 arrived. Freedom of speech and press were realities of a sort. Americans enjoyed them both with a conscious and often exuberant sense of entitlement. Indeed, these freedoms were deeply embedded in the American experience, as more than one editor, tarred and feathered for his failure to gauge the contrary temper of his readership, and more than one malefactor hounded into prison by the baying of the press, had learned to their dismay.2 Yet, in law, freedom of speech and press remained abstractions. One could not speak of them in terms either of philosophy or of theory, at least not upon the basis of any authority grounded in judicial precedent. The Court would consider the amendment for the first time within the next year,3 but the development of philosophy and theory in this field would proceed only gradually.4 More than one wrong turn would be taken before the nature of the uneasy relationship between freedom of expression and intellectual commerce finally began to appear.

Meanwhile, a century and more had passed since the ratification of the Constitution, and with the passing years had come a transformation

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