Copyright, con law, and compelled speech

[Volokh, Eugene]

        I confess that I've never quite understood the argument that
restrictions on the publication of unpublished work "serve[] First Amendment
values by entitling authors to not speak."  I realize that the Court said so
in Harper & Row, but I've never been persuaded by its reasoning.
(Incidentally, the reasoning is quite divorced from the Copyright Clause
argument, since until 1976 these copyright protections of unpublished works
were a matter of *state* law, not federal law.)

        The right not to speak is a constitutional right to be free from the
*government* compelling me to *say* something or include something in my own
speech product.  What exactly does this have to do with *private parties*
publishing something that I did voluntarily say?  When you publish what I
said, you're not compelling me to speak; you're just reporting on what I
said on my own.  If a reporter publishes something that some politician or
celebrity said in an unguarded moment, would we say that he's "compelling
the politician to speak"?  Would a statute barring reporters from publishing
such statements be constitutional on the grounds that it is aimed at
protecting the First Amendment value in preventing compelled speech?

        I suppose some can say that the answer is "Well, politicians do have
a right not to speak, and the reporter's actions do interfere with this
First Amendment value, but the politicians' off-the-cuff statements are
newsworthy."  But if there is a First Amendment value in not speaking, why
should newsworthiness (and how does one define this?) trump this First
Amendment value?  Another answer, which would fit current copyright
doctrine, would be that it's OK to quote a short oral comment, or a short
written one, but not a long written one, because quoting a long comment
isn't fair use while quoting a short one is more likely to be.  But how does
this length distinction fit within the "compelled speech" theory"?  Surely
quoting a five-word statement by someone is as much -- or as little --
"compelled speech" as quoting a fifty-word statement.

        Eugene


John Noble writes:

> The Copyright Act, and its construction, is certainly suffused with First
> Amendment values, revealed in the idea/expression dichotomy as well as the
> fair use doctrine. I think though that the original Constitution and the
> Bill of Rights have (invariably?) been construed as contemporaneous grants
> and limitations on federal authority, requiring that they be reconciled
> rather than ranked. It is possible to imagine a Copyright Act provision
> held unconstitutional because it is BOTH an infringement of rights
> guaranteed by the First Amendment, AND beyond the IP authority of Art. I
> sec. 8. But legislation that might be sustained as a valid exercise of the
> IP power, but a violation of the First Amendment, is (I think) a doctrinal
> null set. Perhaps that is exactly what Prof. Pollack means by an "implicit
> limit" on the IP power, but the reconciliation of the two reflects as much
> a limit on the scope of the First Amendment guaranty -- one that rests on
> far sounder constitutional footing than libel claims, licensing of
> investment advisors, fighting words, obscenity, or any of the other
> "implicit" limits on the scope of the First Amendment. The contours of the
> IP power are clearly subject to "implicit" limitations suggested by the
> First Amendment, but the IP power operates as an explicit limitation on
> the First Amendment unless Prof. Pollack is correct that the First
> Amendment qualifies the IP power.
>
> The relationship between Art. I, sec. 8 and the First Amendment tends to
> be portrayed as invariably antagonistic, but they are largely
> complementary. The authority to secure "for limited times to Authors ...
> the exclusive Right to their ... writings" serves First Amendment values
> by creating a market for the distribution of those writings, and an
> incentive to publish and distribute them. The protection of unpublished
> works, which disregards the economic incentive function, also serves First
> Amendment values by entitling authors to not speak. In between, the right
> of authors to establish the terms and conditions of copying and
> distribution serves First Amendment values by entitling authors to decide
> to who, when and where they will speak.
>
> The fair use doctrine certainly advances First Amendment interests, but if
> it was compelled by the First Amendment, it could hardly depend upon such
> elusive criteria as "the purpose and character of the use"; "the nature of
> the copyrighted work"; "the amount and substantiality of the portion
> used"; and "the effect of the use upon the potential market" -- the
> factors considered in the fair use analysis. Talk about void for
> vagueness. There is a better argument, as Prof. Pollack suggests, that the
> First Amendment compels the idea/expression dichotomy; but it can only do
> so by distinguishing between the right to express an idea, and the right
> express that idea in particular words, which has some troubling
> implications for First Amendment jurisprudence. It seems to me safer to
> view the IP power as carving an exception out of the First Amendment for
> an exclusive right to copy and distribute original expression, than to
> view the First Amendment as the source of an idea/expression distinction
> that purports to protect the former but countenances regulation of the
> latter. In what other contexts might this First Amendment distinction be
> applied? It seems tailor-made for the hostile environment cases -- it's
> not what you said; it's how you said it.
>
> John Noble
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