December 14, 2011 | By corynne mcsherry

The Internet Blacklist vs. The Constitution

Last week, two leading Constitutional scholars offered detailed analyses of the Internet blacklist bills now pending in Congress, the Stop Online Piracy Act (SOPA) and Protect-IP, or PIPA. Both scholars concluded that the proposed law could not pass muster under the U.S. Constitution. So you’d think that the new version of SOPA circulated this week would have resolved those concerns.  

You’d think wrong. While the revised SOPA briefly mentions the First Amendment, the substantive text makes clear that's just lip service.  Here’s a selection of fundamental flaws that remain in both SOPA and PIPA:

First, both bills would still result in the censoring of non-infringing speech.  That is because they allow for the blocking of entire websites – even though the site may contain a great deal of perfectly legal speech.  The Supreme Court has repeatedly affirmed, “broad prophylactic rules in the area of free expression are suspect  . . . Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” As Professor Laurence Tribe puts it, “The First Amendment requires that the government proceed with a scalpel – by prosecuting those who break the law – rather than with the sledgehammer approach of SOPA, which would silence speech across the board.” And if you think the government will at least be precise in choosing which sites to target (not that the Constitutional analysis turns on the government’s good intentions), recall the disgraceful treatment of some of the sites targeted by the government as part of “Operation In Our Sites.” 

Second, the bills allow the government to obtain blocking orders without an adversary proceeding, which means that the right of U.S. citizens to receive information from abroad would be denied, without any real test of the merits of the infringement claim. To be clear, this process is unconstitutional even though the originators of the speech are outside of the United States (though, in some cases, the originators could be U.S. residents, e.g., folks posting comments on a foreign site’s forums), because the First Amendment protects our right to receive information as well as send it.  Tribe points to a chilling parallel in a Supreme Court case which held that the Post Office could not keep a list of U.S. citizens receiving “communist political propaganda” (which, of course, intimidated those citizens from doing so) even though the “propagandists” were located abroad.

Third, as Professor Marvin Ammori notes, the bills would impermissibly regulate the speech of advertisers, search engines and DNS providers.  Normally, similar blocking orders would require at a minimum, a finding that the actual speech in question (e.g., search results, which are protected as opinion, or truthful advertising) results in some irreparable harm.  In addition, by allowing injunctions against tools that could be used to circumvent the blocking orders, SOPA could be used to target any number of sites that are merely providing technical information – including information desperately needed by human rights workers and political dissidents facing all-too similar censorship regimes abroad.

Defenders of the bill will insist that normal First Amendment scrutiny does not apply, because the bill targets copyright infringement.  Leaving aside that the bill also targets trademark infringement (and courts are clear that trademark law must be balanced against the First Amendment), Professor Ammori explains why that theory won’t hold water.  In a nutshell, copyright laws only avoid First Amendment scrutiny when they hew to the “traditional contours” of copyright.  These bills go well outside those traditional contours to burden clearly non-infringing speech, e.g., search results, advertisements, and commentary on sites that also “promote” infringement, a burden that is not incidental but rather essential to the regulatory scheme.

It is ironic, to say the least, that Congress is contemplating these blacklist bills just as the U.S. government is actively criticizing all-too-similar regimes around the world.  We take heart in knowing that in the United States we have a Constitution, and a general public, that will not tolerate censorship.

But as the saying goes, the price of liberty is eternal vigilance. Please take action now to defend not just the Internet, but your constitutional rights.  A critical hearing on SOPA will take place tomorrow. Call your representative to tell him or her that you oppose this bill – and then ping five friends and ask them to do the same!

 

 

 


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