In Texas v. Johnson, the Supreme Court considered the constitutionality of a Texas statute that prohibited desecration of the United States flag with knowledge that the desecration would “seriously offend one or more persons.” In support of the statute, the state argued its interest in preventing breaches of the peace. Although it is possible that acts of flag burning can lead, in some circumstances, to breaches of the peace, the Court held that such a breach had not occurred and was not likely to occur on the facts of the case As the Court explained, “The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption.” Rather, in order to prohibit speech, a state must show a clear nexus – in the particular circumstances at issue in the case – between the prohibited speech and the harm that the government is trying to prevent. The Court elaborated as follows:
[W]e have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) . . . . To accept Texas’ arguments that it need only demonstrate “the potential for a breach of the peace. . .” and that every flag burning necessarily possesses that potential, would be to eviscerate our holding in Brandenburg
Similarly, in the Cohen case described above, the Court found that the government’s interest in maintaining the peace was insufficient to justify the prohibition on public profanity. While acknowledging that some people might find the four-letter word on Cohen’s jacket offensive, the Court was unwilling to presume that it would cause a breach of the peace and cited the lack of any evidence showing that “substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen.” Moreover, the Gertz Court held that, in a defamation case brought by a private individual, the First Amendment requires proof of actual injury because “the States have no substantial interest in securing for plaintiffs . . . gratuitous awards of money damages far in excess of any actual injury.”
The Court took the same view in Zacchini, a right of publicity case that the Court explicitly compared to copyright. There, the Court held that a state has a valid interest in regulating the defendant’s broadcast where “the broadcast of the petitioner’s entire performance, unlike the unauthorized use of another’s name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner’s ability to earn a living as an entertainer.” Thus, the Court indicated that speech regulation is appropriate where there is a strong likelihood of harm to the state’s interest in providing a right of publicity, but not where harm to that interest is less certain or minimal. In addition, the Court held that the state could compensate the injured person only for the actual net harm caused by the defendant’s speech
Perhaps the most important point here, however, is that whether copyright law is content-based or content-neutral, courts must apply at least intermediate scrutiny to copyright infringement cases. Although there is some variation among cases regarding how courts articulate the requirements of intermediate scrutiny, content-neutral speech restrictions must generally serve an important governmental interest in protecting against harm caused by the prohibited speech and must burden substantially no more speech than is necessary to achieve that interest.
For example, in Bartnicki v. Vopper, the Supreme Court considered a state wiretapping statute prohibiting the intentional disclosure of a communication with knowledge or reason to know that the communication was obtained through unauthorized interception. After determining that the statute was a content-neutral restriction on speech, the Court held that the First Amendment prevented its enforcement against a radio host who broadcasted the communication over the air after it was given to him by a third party The Court explained that although the government’s interest in “removing an incentive for parties to intercept private conversations” would be relevant in a case against the person who intercepted the conversation, it was not enforceable against a party who innocently received and published the information. According to the Court, it would be the “unusual” case in which enforcement of the statute against a non-intercepting publisher of the conversation would have any effect on the incentives of the person who intercepted the conversation The Court emphasized that the First Amendment requires more than “mere speculation” that enforcement of the law would serve the government’s interest in the particular case, even where enforcement of the law would be justified in other cases. Indeed, the Court noted that “even the burden of justifying restrictions on commercial speech requires more than ‘mere speculation or conjecture.’”
Likewise, the Turner II Court applied intermediate scrutiny to another content-neutral speech regulation, a “must-carry” provision of federal cable television legislation that required cable providers to dedicate some of their channels to local broadcast stations. Other scholars have argued persuasively that copyright laws are analogous to these communications laws and should be subject to the same level of scrutiny. But Turner II is also important for how it deals with the harm that the government was trying to prevent. The extensive record allowed the Court to “consider whether the must-carry provisions were designed to address a real harm, and whether those provisions will alleviate it in a material way.” Thus, the Court did not merely accept on faith the government’s interest in preserving the number and diversity of programs to which cable subscribers had access, but rather recited numerous findings in the record that showed vertical integration among cable operators and cable programming networks as well as monopolistic control by cable providers over local subscribers. Accordingly, it found a real threat to local broadcasting and communications policy generally.
Thus, applying either strict or intermediate scrutiny to individual copyright infringement suits, it is clear that the copyright holder, as the proponent of the speech restriction, must show that the defendant’s use of copyrighted material is likely to cause
In Texas v. Johnson, the Supreme Court considered the constitutionality of a Texas statute that prohibited desecration of the United States flag with knowledge that the desecration would “seriously offend one or more persons.” In support of the statute, the state argued its interest in preventing breaches of the peace. Although it is possible that acts of flag burning can lead, in some circumstances, to breaches of the peace, the Court held that such a breach had not occurred and was not likely to occur on the facts of the case As the Court explained, “The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption.” Rather, in order to prohibit speech, a state must show a clear nexus – in the particular circumstances at issue in the case – between the prohibited speech and the harm that the government is trying to prevent. The Court elaborated as follows:
[W]e have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) . . . . To accept Texas’ arguments that it need only demonstrate “the potential for a breach of the peace. . .” and that every flag burning necessarily possesses that potential, would be to eviscerate our holding in Brandenburg
Similarly, in the Cohen case described above, the Court found that the government’s interest in maintaining the peace was insufficient to justify the prohibition on public profanity. While acknowledging that some people might find the four-letter word on Cohen’s jacket offensive, the Court was unwilling to presume that it would cause a breach of the peace and cited the lack of any evidence showing that “substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen.” Moreover, the Gertz Court held that, in a defamation case brought by a private individual, the First Amendment requires proof of actual injury because “the States have no substantial interest in securing for plaintiffs . . . gratuitous awards of money damages far in excess of any actual injury.”
The Court took the same view in Zacchini, a right of publicity case that the Court explicitly compared to copyright. There, the Court held that a state has a valid interest in regulating the defendant’s broadcast where “the broadcast of the petitioner’s entire performance, unlike the unauthorized use of another’s name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner’s ability to earn a living as an entertainer.” Thus, the Court indicated that speech regulation is appropriate where there is a strong likelihood of harm to the state’s interest in providing a right of publicity, but not where harm to that interest is less certain or minimal. In addition, the Court held that the state could compensate the injured person only for the actual net harm caused by the defendant’s speech
Perhaps the most important point here, however, is that whether copyright law is content-based or content-neutral, courts must apply at least intermediate scrutiny to copyright infringement cases. Although there is some variation among cases regarding how courts articulate the requirements of intermediate scrutiny, content-neutral speech restrictions must generally serve an important governmental interest in protecting against harm caused by the prohibited speech and must burden substantially no more speech than is necessary to achieve that interest.
For example, in Bartnicki v. Vopper, the Supreme Court considered a state wiretapping statute prohibiting the intentional disclosure of a communication with knowledge or reason to know that the communication was obtained through unauthorized interception. After determining that the statute was a content-neutral restriction on speech, the Court held that the First Amendment prevented its enforcement against a radio host who broadcasted the communication over the air after it was given to him by a third party The Court explained that although the government’s interest in “removing an incentive for parties to intercept private conversations” would be relevant in a case against the person who intercepted the conversation, it was not enforceable against a party who innocently received and published the information. According to the Court, it would be the “unusual” case in which enforcement of the statute against a non-intercepting publisher of the conversation would have any effect on the incentives of the person who intercepted the conversation The Court emphasized that the First Amendment requires more than “mere speculation” that enforcement of the law would serve the government’s interest in the particular case, even where enforcement of the law would be justified in other cases. Indeed, the Court noted that “even the burden of justifying restrictions on commercial speech requires more than ‘mere speculation or conjecture.’”
Likewise, the Turner II Court applied intermediate scrutiny to another content-neutral speech regulation, a “must-carry” provision of federal cable television legislation that required cable providers to dedicate some of their channels to local broadcast stations. Other scholars have argued persuasively that copyright laws are analogous to these communications laws and should be subject to the same level of scrutiny. But Turner II is also important for how it deals with the harm that the government was trying to prevent. The extensive record allowed the Court to “consider whether the must-carry provisions were designed to address a real harm, and whether those provisions will alleviate it in a material way.” Thus, the Court did not merely accept on faith the government’s interest in preserving the number and diversity of programs to which cable subscribers had access, but rather recited numerous findings in the record that showed vertical integration among cable operators and cable programming networks as well as monopolistic control by cable providers over local subscribers. Accordingly, it found a real threat to local broadcasting and communications policy generally.
Thus, applying either strict or intermediate scrutiny to individual copyright infringement suits, it is clear that the copyright holder, as the proponent of the speech restriction, must show that the defendant’s use of copyrighted material is likely to cause
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