Stanford Center for Internet and Society

It’s nothing new for media organizations to employ lofty rhetoric about the role of the press in democracy to advocate special legal privileges. Likewise, it’s nothing new for content creators to try to limit the speech rights of others in order to garner more profit. What is fairly new, however, is for the press to use language about the importance of the First Amendment to argue for a copyright policy that would explicitly limit free speech. In other words, in order to save the First Amendment, we have to limit the First Amendment. Irony is dead.

This week, Rupert Murdoch wrote an op-ed in the Wall Street Journal that exemplified this clever strategy. Aptly titled “Journalism and Freedom,” the article belittles the fair use doctrine and demands compensation for news content online, while going on to wax eloquent about the ideals of the Founding Fathers and the First Amendment. The problem is that the right he claims to value above all else, the freedom of speech, is precisely what prevents media companies like News Corp. from claiming ownership in the news. Facts cannot be owned, so while News Corp. can certainly prevent third parties from reproducing stories in full, it has no right to control the facts within those stories. This is not a peculiarity of copyright law; it is a protection of the First Amendment and an effort to create the informed citizenry Murdoch claims to cherish.

If privacy and the ability to preserve your reputation are essential components to personal freedom, then Michael Jackson was imprisoned. As the media hysteria surrounding his death exemplified, Jackson’s life was a cautionary tale about the weight of relentless public scrutiny. Popular wisdom holds that his woes are the unfortunate but inevitable costs of fame.

Author: Morgan Galland

In E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., the United States Court of Appeals for the Ninth Circuit ruled that the makers of a popular video game did not violate section 43(a) of the Lanham Act by depicting a modified version of plaintiff’s Los Angeles strip club. On Appeal from the United States District Court for the Central District of California, the Ninth Circuit upheld a summary judgment decision for defendants, holding that use of a modified trademark in a video game to create a parody of a real setting is protected under the First Amendment of the United States Constitution. In doing so, it expanded the traditional application of the test developed by the Second Circuit in Rogers v. Grimaldi, 875 F.2d 994, 999 (2nd Cir. 1989).

Author: Alex Harris

The Fourth Circuit upheld the conviction of a man who downloaded, among other content, graphic illustrations of fictional minors engaged in sexual acts, and text emails describing fictional minors engaged in sexual acts. Federal law prohibits receiving obscene depictions of “a minor engaging in sexually explicit conduct.” 18 U.S.C. § 1466A(a). The court held the statute constitutional on its face, and as applied to downloading materials from the Internet. Receiving content via the Internet, the court said, constitutes trafficking in commerce. It is therefore unlike mere possession of obscenity in one’s home, as is protected by the First Amendment and Stanley v. Georgia. Further, the court held that text and drawings can be obscene and prohibited without violating the First Amendment.

Author: José Mauro Decoussau Machado

Citing the First Amendment, the Second Circuit invalidated provisions of the Patriot Act that permit the FBI to impose a nondisclosure requirement on National Security Letters without having to seek judicial review. The court also declared unconstitutional provisions that consider as conclusive a governmental official’s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations.

The Third Circuit once again struck down the Child Online Protection Act (COPA), holding that since the statute was not narrowly tailored to its purpose nor the least restrictive means to achieve it, COPA failed strict scrutiny. Additionally, the court determined that COPA was void for vagueness and for overbreadth. COPA was passed in response to Reno v. ACLU, 521 U.S. 844 (1997), which held that the anti-obscenity provisions of the Communications Decency Act violated the First Amendment. COPA has been before the Supreme Court twice now. In prior cases, courts passed on the question whether to grant a temporary injunction against enforcing the law. Now, the district court has conducted its fact-finding and made its injunction permanent. In this case, the Court of Appeals affirmed the district court’s judgments.

In Jaynes v. Commonwealth of Virginia (decided September 12, 2008), the Supreme Court of Virginia reversed the felony conviction of notorious spammer Jeremy Jaynes, as well as its own earlier decision upholding Jaynes’ conviction. Jaynes appealed his conviction on two principle grounds: first, that the Virginia trial court lacked personal jurisdiction, since he had conducted all his spamming activities in Raleigh, North Carolina; and second, that the statute restricted the First Amendment right to anonymous speech, and therefore was invalid. The court rejected Jaynes’ argument on jurisdiction, but reversed the conviction on the ground that the underlying statute was overbroad in violation of the First Amendment. As Justice Agee writing for the majority observed, the statute was drafted in such a way that “were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.”

Jaynes v. Commonwealth of Virginia