Academic journal article Law and Contemporary Problems

Reconciling What the First Amendment Forbids with What the Copyright Clause Permits: A Summary Explanation and Review

Academic journal article Law and Contemporary Problems

Reconciling What the First Amendment Forbids with What the Copyright Clause Permits: A Summary Explanation and Review

Article excerpt

We need education in the obvious more than investigation of the obscure. Oliver Wendell Holmes (1)



At least since an early article by Professor Melvin Nimmer in the 1970s, (2) there has been some general agreement that Congress is fully within its proper power to enact, pursuant to the Copyright Clause of Article I, (3) an act that may nonetheless be of a kind it is forbidden to enact because of the restraints placed upon it by the Speech-and-Press Clause of the First Amendment. (4) But just how or why that can be so (or even that it is in fact so (5)) is not all that easy to explain. Indeed, on the face of each respective clause, the First Amendment may well quite reasonably be read to acknowledge that the Copyright Clause is a part of the same Constitution. And, since it is, insofar as Congress stays within its boundaries (that is, the "boundaries" furnished by the Copyright Clause itself), it would arguably be perverse for a court to read the First Amendment as for bidding what the Copyright Clause declares is precisely within the authority of Congress to do.

Of course, the First Amendment is later in time. But nothing on the face of the First Amendment purports to affect the power granted to Congress pursuant to the Copyright Clause. So, again, one may say that whatever is properly done by Congress within the permission of the Copyright Clause ought not be said at the same time to be forbidden by some other part of the Constitution, at least unless that "other part" so declares, or unless its express provisions are simply incompatible with an earlier part it necessarily displaces and amends. We have already noted that the First Amendment contains no such declaration putting it at odds with the Copyright Clause. And certainly nothing on its face suggests that it in any respect "amends" (that is, displaces) that clause. (6) The First Amendment is a general admonition--namely, that Congress shall make no law abridging the freedom of speech or of the press. The Copyright Clause on the other hand is a very specific, enumerated power, expressly granting Congress discre tion simply to secure to authors the exclusive right to their respective writings, albeit for limited times rather than in perpetuity. It would seem again, on this basis as well, puzzling to declare that the First Amendment may forbid something the more specifically "targeted" clause empowers Congress to do. One may well suggest that this is another clear case where the useful maxim, expressio unius, exclusio alterius est, appropriately applies. (7)

It happens I fully agree with those who say the First Amendment "limits" what Congress may do pursuant to the Copyright Clause, despite the preceding, introductory thoughts. Still, it has seemed to me that the obvious reason that this is so has not yet been adequately explained or expressed. It is to that end that this brief essay, and these quite summary remarks, are meant to be addressed, with suitable thanks (and apologies) to Justice Holmes.



Consider the following approach to relating the First Amendment to the powers granted to Congress. We proceed in the following way--by noting that the Constitution provides that: "Congress shall make no law... abridging the freedom of speech, or of the press...." (8) Although, to be sure, we note that the Constitution also provides that: "The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...." (9) As we readily agree as well, that according to the Constitution, Congress shall also have Power: "To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...." (10)

So, now to start in the simplest way, with our first case. If the act of Congress is one that presumes to abridge "the freedom of speech or of the press," we agree that it is void pursuant to the prohibitory terms of the First Amendment (that is, the law is one prohibited to Congress and such a law, being prohibited, is to be given no force of law in the courts). …

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