See “Copyright is Unconstitutional” for an update:
Jason Beesinger called to my attention an interesting post by Terry Hart, “Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 2.”Hart makes the intriguing observation that until a few decades ago there was virtually no “scholarship concerning a potential conflict between the Copyright Clause of the US Constitution and the free speech and press protections of the First Amendment.” As he notes:
Eldred devoted only two sentences to the history of the two clauses: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.”
Hart then takes up my argument in this post, that copyright is unconstitutional because the First Amendment came after, and thus partially overrides the copyright clause, and observes:
Kinsella is not the first to say this. For example, this is from a 1986 law review article: “Arguably, then, the [Copyright] Act is unconstitutional, since the free speech guarantee is an amendment which supersedes prior inconsistent constitutional text.”
The quoted article is David E. Shipley, Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises, 1986 BYU Law Review 983, 985 (1986). However, Shipley ultimately rejects the argument:
Notwithstanding these arguments, … the copyright law is constitutional.
After all, we can’t have an “absolutist” view of the First Amendment. Why, that “would mean that perjury, obscenity and mail fraud were constitutionally protected.” Heavens to Betsy! We can’t have that, now can we? Ergo, because “we” “need” to outlaw … obscenity … copyright law must be okay even though it seems to fly in the face of the First Amendment. Whatever.
Hart, who elsewhere on his blog frequently and positively cites the work of pro-IP Objectivist Adam Mossoff, unsurprisingly rejects my argument, and correctly noting that it is a “minority” position. The majority position is, by contrast: “The view of the First Amendment entirely displacing the earlier text is universally rejected, I think properly, as to copyright.” (C. Edwin Baker, First Amendment Limits on Copyright, 55 Vanderbilt Law Review 891, 893 (2002).)
Hart then finds another problem with my argument:
But there’s an even more compelling reason why the subsequent adoption of the First Amendment wouldn’t have or wasn’t intended to impact Congress’s copyright authority at the time.
Twelve of the original thirteen US states (Delaware was the lone exception) adopted copyright acts between 1783 and 1786 — before the current Constitution replaced the Articles of Confederation.
Of those twelve colonies, five of them provided for the freedom of the press in either their state constitutions or separate bills of rights before passing their own copyright laws: Virginia,8 Pennsylvania,9 Georgia,10 South Carolina,11 and Massachusetts.12
Two of the colonies did not enact freedom of the press clauses until after passing their own copyright acts13 while the remaining five did not include “bill of rights” style provisions in their constitutions prior to the ratification of the US Constitution.14
So by the time delegates arrived to draft the US Constitution, over one third of the states had enacted copyright legislation after providing for freedom of the press. This lends solid support to the idea that early US copyright law was perceived as being wholly consistent with the guarantee of a free press.
I don’t find this wholly persuasive. The fact is that copyright does cause censorship and thus infringes freedom of press and speech, which is protected by the First Amendment. Since the latter came later, it supersedes the former. The fact that some people did not “perceive” there to be a conflict does not mean there is not. (Lysander Spooner, whom Hart cites approvingly on the one issue Spooner was bad on—IP (see Hart’s post 15 Objections to Copyright from 1855)—also argued that even slavery was originally unconstitutional even though it was contemplated by the text (see n.3 and text at n. 3 above). The First Amendment-vs-copyright argument is not nearly as much a stretch as Spooner’s argument re slavery.) If some state legislators felt copyright and free speech were compatible, they were simply wrong. Their error does not change the incompatibility between two conflicting provisions of the federal Constitution. The question is whether copyright law is incompatible with the First Amendment, not whether state legislators around the same time thought they were compatible.
I’ll also say that the Bill of Rights, in my view, only affected the federal government’s power to enact copyright law. This is because the Bill of Rights limits federal, not state power—e.g. there were established state religions in some of the States in 1791, such as Congregationalism in Massachusetts. So even if some states had copyright law that was held by them to be compatible with their own constitutions, and even if the First Amendment would not affect those state laws, this does not mean the fedgov had the authority to enact copyright, if it is prohibited by the First Amendment.
Consider also that in Thomas Jefferson’s Letter to James Madison, August 28, 1789 (On the liberty to write, speak, and publish and its limits), he proposes to James Madison, then in the process of drafting the Bill of Rights, that the following be incorporated into the Bill of Rights:
Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.7
If such a provision had been included, then there could be no argument that copyright is unconstitutional (though copyright longer than X years would be, unlike now). The courts would have to find a “balance” between the conflicting free speech rights and the copyright clause. But the new copyright-monopoly amendment was not added to the Bill of Rights. The old 1789 copyright clause was left alone. That means, to my mind, that the 1791 First Amendment supersedes the copyright clause to the extent they are incompatible.
Finally, let me say that I agree with John Hasnas that statutory law—and the Constitution is a statute—is often vague and ambiguous. There is not always an “objective meaning” to “find.”8 Given this, there is nothing wrong with interpreting ambiguous provisions in favor of liberty and justice.9 Since copyright is unjust and violates rights, and since it conflicts with free speech rights (which can be justified as a type of property rights and/or as a prophylactic limitation on dangerous state power), and since there is a decent argument against the copyright law, this is the construction we should favor—just as we ought to favor a construction of the Constitution that prohibits slavery than one that permits it or establishes it. The goal is justice, not finding the “right” interpretation of a statist document that often has no objective interpretation anyway.
This is especially so in the case of copyright, which is coming to be one of the greatest threats to liberty and the most dangerous weapons in the state’s arsenal.10 It is especially important to defeat copyright, and to use all the arguments at our disposal to combat it.