Protecting Justice Scalia's Speech
Volokh, Eugene
VOLOKH at law.ucla.edu
Tue Apr 13 15:40:04 PDT 2004
Sorry, let me be clear: I think that Scalia does have a copyright
in his speech, if it was written down beforehand (either word for word
or in detailed outline), as it probably was. (If it was extemporaneous,
then the speech wouldn't be protected by copyright.) I doubt that he
should have a contract claim, but that's a matter of contract law.
I just agree with you that whatever the scope of these statutory or
common-law rights, he has no *First Amendment* right of his involved
here. That's my criticism of the Fuld and Harper & Row quotes: They do
say there's a First Amendment *right* not to speak implicated when
someone publishes someone else's speech without his permission. I think
that's a mistake.
I also think it's also a mistake to treat it as a First Amendment
value that gives the government broader rights to restrict such
publication, for reasons I mention in the piece I cited to. Among other
things, if there is such a First Amendment value, then presumably it
would apply to short quotes as well as long ones, to noncommercial uses
as well as commercial ones, and even to uses of facts and ideas rather
than expression.
Eugene
-----Original Message-----
From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Tuesday, April 13, 2004 1:19 PM
To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
Subject: Re: Protecting Justice Scalia's Speech
Eugene, I'm afraid I'm a bit confused about a couple of things.
1. You think Scalia shouldn't be able to enforce his
"derivative use" copyright? Because of what? The First Amendment?
Fair use? Fact/expression? Even if the reporter broadcasts the entire
lecture, e.g., on the Web? What if the reporters were informed upon
entering the lecture that no recording was permitted? Does that create
a contract or promissory estoppel right? Cf. ProCD v. Zeidenberg. If
so, would that change the constitutional analysis?
2. With respect to the Chief Judge Fuld quote in Harper & Row,
I'm not sure I understand your concern. I don't read that passage to be
suggesting that the state must provide the speaker with a copyright such
as the one President Ford exercised in Harper & Row, or that the state
would violate Ford's First Amendment rights by declaring the Nation's
publication a fair use. All the passage says is that there is a "First
Amendment value" in the freedom not to speak publicly. That's true, no?
That value requires that the state itself not force one to speak in
certain contexts (Barnette, Wooley, etc.). It doesn't require the state
to protect the speaker from other private parties' publication of speech
that was intended to be private; but when the state does protect that
interest, as through the "first publication" rule of copyright, it
"serve[s]" the constitutional value, doesn't it?
In his letter, Scalia did not refer to this broad First
Amendment "principle," or value. He referred to to his "First Amendment
right not to speak on radio or television when I do not wish to do so,"
in a manner that suggests he has a constitutional right to prohibit
private broadcast of his lecture. You agree, don't you, that this is
simply hogwash . . . or, at the very least, very loose and imprecise use
of the phrase "First Amendment right"?
----- Original Message -----
From: Volokh, Eugene <mailto:VOLOKH at law.ucla.edu>
To: CONLAWPROF at lists.ucla.edu
Sent: Tuesday, April 13, 2004 3:40 PM
Subject: RE: Protecting Justice Scalia's Speech
I agree that he shouldn't be able to enforce any
such right -- but Harper & Row does have some mighty odd language about
the supposed First Amendment right not to speak:
"Moreover, freedom of thought and expression "includes
both the right to speak freely and the right to refrain from speaking at
all." Wooley v. Maynard, 430 U.S. 705, 714 (1977). We do not suggest
this right not to speak would sanction abuse of the copyright owner's
monopoly as an instrument to suppress facts. But in the words of New
York's Chief Judge Fuld: "The essential thrust of the First Amendment
is to prohibit improper restraints on the voluntary public expression of
ideas; it shields the man who wants to speak or publish when others wish
him to be quiet. There is necessarily, and within suitably defined
areas, a concomitant freedom not to speak publicly, one which serves the
same ultimate end as freedom of speech in its affirmative aspect."
Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250, 255 (1968)."
Courts and commentators have recognized that copyright, and the right of
first publication in particular, serve this countervailing First
Amendment value."
I criticize this argument, which I think is quite
inconsistent with standard First Amendment doctrine, and would lead to
some very bad results, at http://www1.law.ucla.edu/~volokh/speechip.pdf
(pp. 724-28). Nonetheless, perhaps this is the broader principle to
which Justice Scalia is alluding.
Eugene
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, April 13, 2004 10:13 AM
To: Mark Tushnet; RJLipkin at aol.com
Cc: CONLAWPROF at lists.ucla.edu; Rebecca Tushnet
Subject: Re: Protecting Justice Scalia's Speech
Very eager to read Rebecca's article. The
question here, as I understand it, is whether Scalia could enforce, in a
court of law, the condition he places on his speeches that the audience
not tape and disseminate the speech. (This is distinct from the
question whether, if Scalia has such a statutory right, the marshals may
help implement it by destroying the recording -- the answer to which
should be "no.") Perhaps he would be able to argue breach of contract
-- i.e., that the "no rebroadcast" rule was a term of the "contract"
agreed to when the audience member "purchased" entrance to the lecture.
Or, if there was such an (express or implied) agreement not to
rebroadcast, maybe Scalia could sue under a promissory estoppel theory,
and in that case perhaps Cohen v. Cowles would defeat a First Amendment
defense. (I say "perhaps" because it's not clear to what extent Cohen
depends upon the "secretive" nature of the speaker's identity in that
case; there is no secrecy element with respect to a Scalia speech to a
crowded auditorium, particularly once Scalia permits print media to
reveal the substance of his lecture.)
But what about Scalia suing for violation of his
"copyright"? This hypothetical assumes, as will I, (i) that Scalia was
speaking in his personal, rather than official, capacity (because
neither he nor the U.S. has a copyright in his official-capacity
"expression"); and (ii) that there is a "copyright" in a delivered
lecture that can be infringed by rebroadcast of excerpts of that lecture
(there probably is, but I don't know the law that well -- in any event,
there's probably a state-law "right of publicity").
Further assume that the rebraodcast is simply
part of a news story -- not involving criticism, parody, satire or other
"transformation." Is the reporter's broadcast of the lecture an
infringement? And, if so, is there a First Amendment or fair use
defense? If all the reporter did was to "report newsworthy facts" about
the lecture, that probably would not be infringement, and in any event
would be constitutionally protected, even if it were necessary to quote
Scalia verbatim in order to fairly convey such facts. See Zacchini, 433
U.S. at 574-75; Harper & Row, 471 U.S. at 553. But those cases also
suggest that rebroadcast of the entire lecture would not be
constitutionally privileged, even if it is in some sense "newsworthy."
Rebecca, Malla, Eugene, et al.: Is this more or
less accurate?
----- Original Message -----
From: "Mark Tushnet" <tushnet at law.georgetown.edu
<mailto:tushnet at law.georgetown.edu> >
To: <RJLipkin at aol.com <mailto:RJLipkin at aol.com>
>
Cc: "Rebecca Tushnet"
<TUSHNETR at juris.law.nyu.edu <mailto:TUSHNETR at juris.law.nyu.edu> >;
<CONLAWPROF at lists.ucla.edu <mailto:CONLAWPROF at lists.ucla.edu> >
Sent: Tuesday, April 13, 2004 12:11 PM
Subject: Re: Protecting Justice Scalia's Speech
> The original postings on this topic hinted at
the following: Copyright is in fact a right not to speak or have others
reproduce your words (except under conditions you yourself determine).
I've learned from R. Tushnet that copyright attempts to deal with the
problems of exposing your words to criticism through doctrines like
"fair use" and "transformative use," but -- she argues in an article
either just sent out to law reviews or on the verge of being sent out --
those doctrines, when analyzed, can't do the work of reconciling
copyright with the kinds of First Amendment concerns Bryan W. has
expressed.
> Content-Type: multipart/alternative;
>
boundary="-----------------------------1081872275"
>
>
> -------------------------------1081872275
> Content-Type: text/plain; charset="US-ASCII"
> Content-Transfer-Encoding: 7bit
>
> In a message dated 4/13/2004 12:25:22 AM
Eastern Standard Time,
> bryanw at tjsl.edu <mailto:bryanw at tjsl.edu>
writes:
> Once one speaker has spoken, the right of
other speakers to repeat and spread
> the original speaker's words (whether by
recording or other means), seems to
> me an essential corollary of the underlying
First Amendment right. How else
> can others fully and freely criticize the
first speaker?
> On balance, I think Bryan has
persuaded me. But I don't think I can
> come up with the principle that explains why
Bryan is correct. It might be as
> a general rule that the right of others to
repeat the speaker's views is
> essential, but why should this be a
categorical rule. That is, why isn't it a
> presumption that can be overcome in certain
circumstances? Similarly, why does
> the principle of free speech entail that the
speaker must always subject his or
> her views to the criticism of everyone. Even
if one grants that free (public)
> speech entails subjecting one's speech to
criticism, it doesn't follow that
> the principle precludes choosing which
audience should do the criticizing.
> Further, and this certainly might be simply an
idiosyncratic reaction, the
> language of free speech seems to me to have
become fixed and ossified in that we no
> longer take seriously the responsibility of
reexamining what free speech
> entails, apart from caselaw, and what the
jurisprudential basis of free speech is.
> In short, I'd like to see a jurisprudential
reexamination of the issue, for
> example, determining what the right to free
speech entails, why the right to
> free speech entails the right not to speak,
and why the right not to speak is
> limited to simply not speaking. Perhaps I've
failed to keep up with the
> literature in this area.
>
> In sum, though I concede the point to
Bryan, I am left with an uneasy
> feeling that the constitutional community has
not successfully explored the
> scope and limits of the right not to speak.
>
> Bobby
>
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware
>
> -------------------------------1081872275
> Content-Type: text/html; charset="US-ASCII"
> Content-Transfer-Encoding: quoted-printable
>
> <HTML><HEAD>
> <META charset=3DUS-ASCII
http-equiv=3DContent-Type content=3D"text/html; cha=
> rset=3DUS-ASCII">
> <META content=3D"MSHTML 6.00.2800.1400"
name=3DGENERATOR></HEAD>
> <BODY style=3D"FONT-SIZE: 12pt; FONT-FAMILY:
Arial; BACKGROUND-COLOR: #fffff=
> f">
> <DIV>
> <DIV>
> <DIV>In a message dated 4/13/2004 12:25:22 AM
Eastern Standard Time, bryanw@=
> tjsl.edu writes:</DIV>
> <BLOCKQUOTE style=3D"PADDING-LEFT: 5px;
MARGIN-LEFT: 5px; BORDER-LEFT: blue=20=
> 2px solid"><SPAN
class=3D030580604-13042004><FONT face=3DArial>Once one spea=
> ker has spoken, the right of other speakers to
repeat and spread the origina=
> l speaker's words (whether by recording or
other means), seems to me an esse=
> ntial corollary of the underlying First
Amendment right. How else can o=
> thers fully and freely criticize the first
speaker?</FONT></SPAN></BLOCKQUOT=
> E></DIV>
>
<DIV> On balance, I
thi=
> nk Bryan has persuaded me. But I don't
think I can come up with the pr=
> inciple that explains why Bryan is
correct. It might be as a general ru=
> le that the right of others to repeat the
speaker's views is essential, but=20=
> why should this be a categorical rule.
That is, why isn't it a presump=
> tion that can be overcome in certain
circumstances? Similarly, why does the=20=
> principle of free speech entail that the
speaker must always subject his or=20=
> her views to the criticism of
<EM>everyone</EM>. Even if one grants that fre=
> e (public) speech entails subjecting one's
speech to criticism, it doesn't f=
> ollow that the principle precludes choosing
which audience should do the cri=
> ticizing. Further, and this certainly
might be simply an idiosyncratic=
> reaction, the language of free speech
seems to me to have become =
> fixed and ossified in that we no longer take
seriously the responsibili=
> ty of reexamining what free speech entails,
apart from caselaw, and what the=
> jurisprudential basis of free speech
is. In short, I'd like to=20=
> see a jurisprudential reexamination of the
issue, for example, determining&n=
> bsp;what the right to free speech
entails, why the right to free=20=
> speech entails the right not to speak, and why
the right not to speak is lim=
> ited to simply not speaking. Perhaps
I've failed to keep up with =
> the literature in this area. </DIV>
> <DIV> </DIV>
> <DIV> In
sum, though I concede the poin=
> t to Bryan, I am left with an uneasy feeling
that the constitutional communi=
> ty has not successfully explored the scope and
limits of the right not to sp=
> eak. </DIV>
> <DIV> </DIV></DIV>
> <DIV><FONT lang=3D0 face=3DArial size=3D3
FAMILY=3D"SANSSERIF" PTSIZE=3D"12"=
> >Bobby<BR><BR>Robert Justin
Lipkin<BR>Professor of Law<BR>Widener University=
> School of
Law<BR>Delaware</FONT></DIV></BODY></HTML>
>
> -------------------------------1081872275--
>
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