Intellectual Property in the Image
of an Absolute First Amendment
In prior chapters we have acknowledged the merit in intellectual property while questioning the understanding, common to all the doctrines in which expression plays an important part, that exclusive interests in expression can be recognized and protected without substantial concern for the obvious conflict between such interests and the First Amendment. We have suggested that this conflict has always existed, but that it has grown more evident, more insistent, and more destructive in our time. We have suggested that our present understanding of the First Amendment is not only inadequate to the need, but is additionally flawed in itself, and have argued accordingly that the amendment would be better understood were it to be interpreted at large as a straightforward constraint against the exercise of Congressional (or state) power abridging speech and press. Nothing in what we suggest presupposes that all of the amendment's affirmative or penumbral benefits, defined in the course of a century's contemplation, would necessarily be relinquished. On the other hand, we have no necessary quarrel with carrying the limitations implicit in our arguments beyond the immediate role they play in our endeavor.1 Paying heed to a plenary reinterpretation of the amendment at large is not essential to our undertaking. The Court's easy dismissal of the underlying conflict of concern to us here has never resulted in a considered judgment on any ground; at most, it has been a device for deferring such a judgment. We propose accordingly that the First Amendment be read absolutely, in keeping with its first and most obvious meaning: that Congress shall make no law abridging freedom of speech or of the press by conferring monopolies in expression that otherwise would belong to the universe of discourses in which all are free to share and share alike. In at least this sense, “no law” should mean no law.