Legal claims based upon private property rights are increasingly infringing upon interests in freedom of speech and the free dissemination of information. This essay examines both "real" property claims and intellectual property rights that affect free speech and urges that courts, legislatures, and others carefully scrutinize new attempts to impute trespass liability and commodify information.
"We ride high on post-cold war triumph convinced that all the ills of society would be remedied if only we propertized everything. And so we do, or at least, we try." - Lawrence Lessig1
As we enter the twenty-first century, a conflict between fundamental rights that has been in many ways long suppressed is coming increasingly, indeed insistently, to the fore. First Amendment free speech and press rights, and related interests in newsgathering and the free dissemination of information, are colliding head-on with a variety of property claims. Although there has always been some tension between property ownership and free speech, a number of developments suggest that the intersection of property rights and free expression will be an increasingly important feature of the First Amendment landscape. Decisions currently being made by legislatures and courts may well have a profound influence on the future course of free speech and the free flow of information.
To those of us interested in free expression, property rights hardly have the same cachet as First Amendment freedoms. Yet, as legal scholar Justin Hughes has pointed out, property rights are almost certainly more fundamental to our legal system than are conceptions of freedom of thought and expression. Hughes noted that "ideas about property have played a central role in shaping the American legal order. For every Pilgrim who came to the New World in search of religious freedom, there was at least one colonist who came on the promise of a royal land grant or one slave compelled to come as someone else's property."2 Property rights thus have a central place in the legal universe and often tend to trump competing claims. Because various property doctrines developed both earlier than, and largely in isolation from, legal concepts of free speech, the intersections between legal principles from the two areas are often confusing.
Property claims that potentially conflict with free speech interests are legion. They include copyright, trademark, the right of publicity, newsgathering torts, and a host of other possible claims. As intellectual property scholar Diane Leenheer Zimmerman, writing nearly a decade ago, noted: "The truth is that, despite large areas of peaceful coexistence between the values protected by the Speech and Press clauses and those defended by property doctrines, conflict between the two is serious. What seems to have happened in the course of this conflict is that an everexpanding array of new or reconstructed property theories is cannibalizing speech values at the margin. In large part, this has occurred not because speech claims are inherently weaker than property claims, but because courts fail to think critically about the justifications for, functions of, and limitations on property rules in the sensitive area of speech."3 If anything, the conflict between speech and property rights has intensified in the years since Professor Zimmerman wrote those words.
This essay will examine a few "hot spots" in the ongoing struggle between property claims and concerns with free expression and the free dissemination of ideas and information. No claim is made that this brief survey is encyclopedic. Rather, the attempt is to touch on a few key intersections that highlight the larger theme under discussion. In the interest of an accessible discussion, I have in some spots omitted a few legal niceties, for which I hope my fellow legal scholars will forgive me. The essay first touches on "real" property claims that affect free speech, and then moves on to a brief discussion of (intangible) intellectual property claims that have similar implications. …