Would SOPA & PIPA Violate the First Amendment?

Today, thousands of sites across the internet have voluntarily blacked themselves out in protest of two bills pending before Congress: the Stop Online Piracy Act (SOPA) in the House of Representatives, and its Senate version, the Protect IP Act (PIPA).  Although intended to serve the laudable goal of combating online piracy of copyrighted works , the consensus among these protestors (which include most of the largest companies in Silicon Valley) is that SOPA & PIPA contain at least the following flaws:

  • By using, or at least encouraging, the technology known as “DNS blocking,” the Acts would threaten the structural integrity of the entire internet, leaving users more vulnerable to hacking.
  • Its remedies are overkill. Instead of the current regime under the Digital Millennium Copyright Act, which permits copyright owners to send ISPs notice of particular infringing material and request its removal, the Acts would empower owners to demand that an entire website be blocked, links o them removed from search engines and other websites, and advertising and payment processing websites stop doing business with the site–all because the owner “believes” that the site is “dedicated to the theft of US property.”
  • Because the Acts allow owners to seek a court order requiring these steps as a first step, the allegedly infringing sites and the third-party linking sites targeted by the owner would need to defend themselves in court every time an owner makes a claim against the them.  The prohibitive legal costs involved would force websites to comply even with bogus or poorly supported requests.
  • The vague, broad wording of the Act would force search engines and other websites to self-censor their content, for fear of being held liable to infringing user-generated material.  Sites that rely on such content, such as YouTube and Facebook, might cease to exist.  The effort and expense of policing every single link on the site would be prohibitive, and many would choose simply not to host any content rather than risk liability.
  • By targeting software tools that would circumvent the DNS blocking solutions, the Act would jeopardize the political dissidents around the world who rely on such tools to fight oppressive regimes.

One question that I haven’t seen articulated very often, however, is whether these Acts would pass constitutional muster if they were ever challenged in Court.  That’s where renowned constitutional scholar Laurence H. Tribe comes in.  He has published a lengthy legal memorandum detailing several reasons why SOPA and PIPA violate the First Amendment’s protection of free speech.  Those reasons include:

  • The Acts amount to impermissible “prior restraint” of speech, because they allow private parties to suppress speech without a judicial hearing and due process of law.
  • The definition of a website “dedicated to the theft of US property” is impermissibly vague, and allows copyright owners to target entire sites when only a small portion of them contains infringing material.
  • The burden placed on websites to police their own content, under threat of strict liability for infringing content found there, will chill their exercise of free speech rights.
  • The sweeping remedies authorized by the Acts are so broad that they will inevitably affect “large swaths” of legitimate speech as well.
  • The Acts authorize the US Attorney General to blacklist sites suspected of infringement, under a process that is unlikely to ever afford most sites a realistic chance of defending themselves.  US citizens would then be deprived of information that they have a First Amendment right to access.

To this list, I would add the fact that neither Act appears to acknowledge or respect the defense of “fair use” protected by the Copyright Act.  Courts have explained that this defense is a “safety valve” necessary to ensure that First Amendment rights are respected in situations where their exercise may technically constitute copyright infringement.  In one recent, celebrated decision, a federal judge ruled that a copyright owner ran afoul of this defense by failing to consider a YouTube user’s potential fair use rights before demanding that her video be removed.  Under SOPA and PIPA, however, the owner could have simply demanded that the whole of YouTube be blocked because of that video.

Some of Tribe’s arguments overlap each other, and include policy considerations that go beyond the bounds of First Amendment case law.  Nevertheless, these are important considerations that raise issues at the heart of our constitutional democracy.  They also lay out paths to a legal challenge in the even that SOPA and PIPA become law.