COPYRIGHT AS A MODEL FOR FREE SPEECH LAW: WHAT COPYRIGHT HAS IN COMMON WITH ANTI-PORNOGRAPHY LAWS, CAMPAIGN FINANCE REFORM, AND TELECOMMUNICATIONS REGULATION - Notes

* Associate, Debevoise & Plimpton. I owe Mark Tushnet a great debt for his comments and his self-restraint, and Jack Balkin for his assistance at every stage. Lawrence Lessig, Richard Primus, Kim Roosevelt, Zachary Schrag, and Tim Wu provided many helpful comments. As I have doubts about the concept of independent authorship, responsibility for any remaining errors is no more mine than responsibility for any insights. Comments are welcome at rebecca@tushnet.com.
1See, e.g., Brief of Amicus Curiae Association of American Publishers, Inc., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (No. 83–1632) (“[I]f the First Amendment is the moral force of publishing, copyright is its commercial foundation. . . . [C]opyright and the First Amendment are essentially complementary.”); Harvey S. Perlman & Laurens H. Rhinelander, Williams & Wilkins Co. v. United States: Photocopying, Copyright, and the Judicial Process, 1975 Sup. Ct. Rev. 355, 404 (“While the First Amendment facilitates the flow of information by preventing government intervention, the copyright system encourages the development of information and its dissemination by providing incentives for publication. The conflict, if any, is in method not purpose.”); Michael D. Britten, Note, Constitutional Fair Use, 20 Wm. & Mary L. Rev. 85, 92 (1978) (“[C]opyright seeks by actively encouraging what the first amendment seeks by strictly discouraging.”).
2 Brief of Gannett Co. et al., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (No. 83–1632) (“Read literally, the First Amendment would invalidate the Copyright Act”); see also Paul Goldstein, Copyright and the First Amendment, 70 Colum. L. Rev. 983, 989 (1970); Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work’s “Total Concept and Feel,” 38 Emory L.J. 393, 393–94 (1989).
3 See infra notes 8–126 and accompanying text.
4 See infra notes 127–214 and accompanying text. This Article will not take up the debate over how well copyright writ large serves to generate more speech. That debate has been extensively addressed elsewhere. See, e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970); Robert M. Hurt & Robert N. Schuchman, The Economic Rationale of Copyright, 56 Am. Econ. Rev. Papers & Proc. 421 (1966); William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325 (1989). Instead, I will assume that, in general, people will do more of what they can get paid for. That this may not be true at the margin or in certain special cases will affect the boundaries of an ideal copyright regime, not the overall justification for the existence of copyright.
5 Harper & Row Publishers, Inc., v. Nation Enters., 471 U.S. 539, 558 (1985).
6 See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) [hereinafter Turner II]; Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) [hereinafter Turner I].
7 See infra notes 215–249 and accompanying text.
8See 17 U.S.C. § 503(a) (1994) (“At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.”).
9See, e.g., Columbia Pictures Indus., Inc. v. Jasso, 927 F. Supp. 1075 (N.D. Ill. 1996); Century Home Entm’t, Inc. v. Laser Beat, Inc., 859 F. Supp. 636 (E.D.N.Y. 1994).
10See 17 U.S.C. § 503(b) (1994).
11See, e.g., U2 Home Entm’t, Inc. v. Sang Kim, No. 98–CV–4159, 1998 U.S. Dist. LEXIS 17683 (E.D. Pa. Nov. 4, 1998); Basquiat v. Baghoomian, No. 90–CIV–3853 (LJF), 1992 U.S. Dist. LEXIS 7622 (S.D.N.Y. May 22, 1992) (concerning books made by collecting a successful artist’s images); D.C. Comics, Inc. v. “John Doe” Nos. 1–25, No. 89–1669, 1989 U.S. Dist. LEXIS 7398 (D.D.C. June 26, 1989) (granting blanket permission to search for and seize allegedly infringing materials from street vendors in the District of Columbia); Worlds of Wonder, Inc. v. Vector Intercontinental, Inc., No. C86–2671, 1986 U.S. Dist. LEXIS 15879 (N.D. Ohio Dec. 30, 1986); cf. Richard Harrington, Drawing a New Crowd: Comics for the Rock-and-Roll Generation, Wash. Post, Oct. 13, 1991, at G1 (discussing comic books about the rock groups Bon Jovi and Motley Crue that were destroyed as part of a settlement in an infringement suit).
12 See, e.g., Gary Goodpaster, Equality and Free Speech: The Case Against Substantive Equality, 82 Iowa L. Rev. 645, 673 (1997) (quoting Claude Lefort, Democracy and Political Theory 33 (David Macey trans., 1988)).
13 The Court stated that:

We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means, such as seeking him out and asking him what it is. Nor have we recognized any such limitation on the independent right of the listener to receive the information sought to be communicated.

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 757 n.15 (1976); see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982) (right to information on public events such as trials); Linmark Assoc. v. Township of Willingboro, 431 U.S. 85, 92 (1977) (right to receive commercial speech); Young v. American Mini Theatre, 427 U.S. 50, 77 (1976) (“The central First Amendment concern remains the need to maintain free access to the public to the expression.”); Kleindienst v. Mandel, 408 U.S. 753, 760 (1972) (discussing the right to “receive information and ideas”); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (“[T]he people as a whole retain . . . their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (free speech includes the right to speak, the right to distribute, and the right to receive speech).
14 See L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1, 3 (1987); Harry N. Rosenfield, The Constitutional Dimensions of Fair Use in Copyright Law, 50 Notre Dame L. REV. 790, 796–98 (1975); Lionel S. Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright L. Symp. (ASCAP) 43, 66 (1971).
15 See, e.g., Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 758 (9th Cir. 1978) (“[D]efendant’s [First Amendment] claim can be dismissed without a lengthy discussion.”); Schnapper v. Foley, 471 F. Supp. 426, 428 (D.D.C. 1979), aff’d, 667 F.2d 102 (D.C. Cir. 1981); McGraw-Hill, Inc. v. Worth Publishers, Inc., 335 F. Supp. 415, 422 (S.D.N.Y. 1971). Most commentators react similarly. See, e.g., NII Copyright Protection Act of 1995: Joint Hearing on H.R. 2441 and S. 1284 Before the Subcomm. on Courts and Intellectual Property of the House Judiciary Comm. and the Senate Judiciary Comm., 104th Cong. (1995) (testimony of Bruce Lehman, Commissioner of Patents) (“The First Amendment has always provided a completely different standard with regard to liability for actions that constitute speech as compared to actions that constitute copyright infringement. They’re really just apples and oranges. . . . [I]t does a disservice to both areas of law . . . to analogize from one to the other.”). Although Professor Nimmer’s important treatise on freedom of speech addresses copyright, see Melville B. Nimmer, Nimmer on Freedom of Speech §§ 2–55 to 2–84 (student ed. 1984) [hereinafter Nimmer, Freedom of Speech], the best-selling constitutional law casebook in the country devotes over 400 of its 1600-odd pages to freedom of expression, with only one sentence and three citations about copyright. See Geoffrey R. Stone et al., Constitutional Law 1289 (2d ed. 1991).
16 See Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 Cal. L. Rev. 283, 289–99 (1979); Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180, 1190 (1970) [hereinafter Nimmer, Copyright].
17 While both Denicola and Nimmer were aware of copyright’s speech-generating features, they only used those features to prop up the defense of idea/expression and fair use as central speech-protective limits. Others examining the problem have similarly focused on idea/expression and fair use. See, e.g., Los Angeles News Serv. v. Tullo, 973 F.2d 791, 795–96 (9th Cir. 1992); Floyd Abrams, First Amendment and Copyright: The Seventeenth Donald C. Brace Memorial Lecture, 35 J. Copyright Soc. 1, 3–4 (1987); Celia Goldwag, Copyright Infringement and the First Amendment, 29 Copyright L. Symp. (ASCAP) 1, 4 (1983); Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 Stan. L. Rev. 1343, 1383 n.189 (1989) [hereinafter Gordon, An Inquiry into the Merits]; David E. Shipley, Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises, 1986 BYU L. Rev. 983, 998, 1042. Other ways in which the copyright law accommodates free speech concern are occasionally mentioned, but they generally take a back seat to these two primary limits. See, e.g., Brief of Gannett Co., Inc., supra note 2 (the exclusion of copyright for facts, the exclusion for works of the U.S. government, and the originality requirement); Stephen Fraser, The Conflict Between the First Amendment and Copyright Law and Its Impact on the Internet, 16 Cardozo Arts & Ent. L.J. 1, 13 (1998) (facts); Goldstein, supra note 2, at 1020–22 (originality); Goldwag, supra, at 4–5 (limited duration of copyright and originality); Nimmer, Copyright, supra note 16, at 1193–96 (limited term).
18 See 17 U.S.C. § 102(b) (1994) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”).
19 See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985); see also Air Pirates, 581 F.2d 751; Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1170 (9th Cir. 1977) (“The ‘marketplace of ideas’ is not limited by copyright because copyright is limited to protection of expression.”); Wainwright Sec. Inc. v. Wall St. Transcript Corp., 558 F.2d 91 (2d Cir. 1977); Fantasy, Inc. v. Fogerty, 664 F. Supp. 1345, 1351 (N.D. Cal. 1987); Reddy Communications, Inc. v. Environmental Action Found., 199 U.S.P.Q. (BNA) 630, 634 (D.D.C. 1977); Nimmer, Freedom of Speech, supra note 15, § 2.05[C], at 2–66 (“It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions.”); Denicola, supra note 16, at 290–91; Nimmer, Copyright, supra note 16, at 1189–93; Pamela Samuelson, Reviving Zacchini: Analyzing First Amendment Defenses in Right of Publicity and Copyright Cases, 57 Tul. L. Rev. 836, 881–83 (1983).
20 See Nimmer, Copyright, supra note 16, at 1181.
21 Meyer v. Grant, 486 U.S. 414, 424 (1988).
22 Turner I, 512 U.S. 622, 675 (1994) (O’Connor, J., concurring and dissenting in part); see also Hedges v. Wauconda Cmty. United Sch. Dist. No. 118, 9 F.3d 1295, 1302 (7th Cir. 1993) (“A city may not limit booksellers to vending the works they write themselves; a state may not exclude newspapers printed outside its borders . . . . That adopting the expression of others is a form of speech we freely concede.”).
23 See Cohen v. California, 403 U.S. 15, 25–26 (1971); see also Guglielmi v. Spelling-Goldberg Prods., 603 P.2d 454, 458 (Cal. 1979); Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 Duke L.J. 1, 34–36 (arguing that, because persuasion is not fully rational, content and form are not separable in practice). Limits on use of another’s expression may even be fundamentally offensive to a speaker’s sense of self. When J.D. Salinger’s biographer was sued for infringement for quoting Salinger’s letters, he was asked why he did not paraphrase the contents with neutral words that did not use Salinger’s expression. He replied that he would be ashamed to put his name to such awkward and gutted prose. See Salinger v. Random House, Inc., 811 F.2d 90, 96–97 (2d Cir. 1987).
24 See Cohen, 403 U.S. at 26.
25 The idea/expression dichotomy might be a kind of “manner” restriction, like regulations that prohibit broadcasting any noise above a certain level. See, e.g., Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981). In the right of publicity context, the Tenth Circuit recently dealt with a similar claim:

[I]n the context of intellectual property, [the] “no adequate alternative avenues” test does not sufficiently accommodate the public’s interest in free expression. Intellectual property, unlike real estate, includes the words, images and sounds that we use to communicate. . . . Restrictions on the words or images that may be used by a speaker, therefore, are quite different than restrictions on the time, place, or manner of speech.

Cardtoons, L.C. v. Major League Baseball Players Ass’n., 95 F.3d 959, 971 (10th Cir. 1996) (citations omitted). The idea/expression distinction fails the standard time, place and manner test, which requires that a regulation be “justified without reference to the content of the regulated speech” and that “ample alternative channels for communication of the information” remain. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). Protecting expression from copiers depends on the content of the speech, since non-copied or fairly used expression and facts are all fair game; moreover, wherever a copier can speak, she will not be allowed to use the particular words at issue. But cf. Robert Post, Recuperating First Amendment Doctrine, 47 Stan. L. Rev. 1249, 1260–70 (1995) [hereinafter Post, Recuperating First Amendment Doctrine] (criticizing time, place and manner doctrine for its incoherence and its propensity for authorizing ever-increasing government restrictions on speech).
26 Copyright claims are obviously motivated by disagreement with a defendant’s message in some cases. See, e.g., Religious Tech. Ctr. v. Scott, 82 F.3d 423 (9th Cir. 1996) (one of a large number of cases brought by Scientology against critics); United Christian Scientists v. Christian Science Bd. of Dirs., 829 F.2d 1152, 1156 n.18 (D.C. Cir. 1987) (discussing attempts by one group of Christian Scientists to use copyright to block the distribution of another group’s unorthodox version of Mary Baker Eddy’s writings); Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986) (pro-choice author sued anti-choice author for copyright infringement based on a quotation). In Grundberg v. Upjohn Co., 137 F.R.D. 372 (D. Utah 1991), a manufacturer tried to use copyright to protect 90,000 pieces of litigation documents from dissemination by the media in order to prevent public access to the potentially embarrassing contents of those documents.
27See Int’l Olympic Comm. v. San Francisco Arts & Athletics, 789 F.2d 1319, 1321 (1986) (Kozinski, J., dissenting).
28 See Denver Area Ed. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 768 (1996).
29 See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (citation omitted) (finding that the First Amendment required an actual malice standard for intentional infliction of emotional distress by a parody in a magazine in order “to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.”).
30 Nimmer, Freedom of Speech, supra note 15, § 3.01, at 3–6 to –9. The difficulty of denying expression’s value has been recognized by defenders of the idea/expression distinction who have felt compelled to make exceptions for special cases. Melville Nimmer identifies limited cases in which “the ‘idea’ of a work contributes almost nothing to the democratic dialogue, and it is only its expression which is meaningful.” Nimmer, Copyright, supra note 16, at 1197. He suggests that this is obviously true of much graphic art, though copyright should still protect artworks because society generally has little need of free copying of such works. See id. In the case of very important pictorial representation of newsworthy events, though, an exception should be made: copyright should not allow an author to control photographs of an event like the My Lai massacre. See id. at 1197–98. Unfortunately, what is important enough to qualify for this exception will be highly uncertain, like the rest of the infringement test.
There is also a subtle contradiction between the overall theory of free speech put forth by scholars such as Nimmer and the proposal to make exceptions for expression in really significant cases. For Nimmer, news pictures are more important to a democratic dialogue than verbal reports, no matter how eloquent, because people perceive pictures differently than words. If this is a correct understanding of how humans process information, however, then Nimmer’s underlying commitment to rational self-government as the fundamental purpose of the First Amendment becomes more troublesome. If we are creatures who cannot reduce some of our deepest reactions to words, if our politics has to transcend words and look to symbols at crisis points, then we are not really talking about rational, coolly deliberative self-government. A picture is not an argument. If that picture is nonetheless vital to democratic self-governance, then maybe direct, point-by-point political argument is not the central value of speech. And if that is the case, then Nimmer’s central distinction between politically important and decorative speech begins to break down:

Some of the most influential forces in our culture do not make an argument or appeal to the intellect: music, visual art, and a great deal of advertising (including political advertising) contribute to the “marketplace of ideas” through sound, imagery, and nonrational appeals to passion and desire. It would be difficult to say that a Madonna concert makes a strictly rational “argument,” yet Madonna’s “communications” have had at least as great an effect on our culture and political life as most books of analytic philosophy or political science. . . . [O]ne cannot restrict First Amendment protection to the rational or “cognitive” without ignoring what works as persuasion in public discourse and vastly expanding the government’s power to censor.

David Cole, Playing by Pornography’s Rules: The Regulation of Sexual Expression, 143 U. Pa. L. Rev. 111, 125–26 (1994). Nimmer is of course entirely aware of the difficulty of determining what speech is important to self-governance, and he holds that overtly non-political speech serves valuable First Amendment goals. See Nimmer, Freedom of Speech, supra note 15, § 3.01, at 3–6 to 3–9.
31 See Turner II, 520 U.S. 180 (1997).
32 I discuss good reasons for copyright below; the point here is that courts don’t bother to make such an inquiry in copyright cases.
33 475 U.S. 1, 19 (1986).
34 Id. at 14 (plurality opinion).
35 Id. at 24 (citations and footnote omitted) (Marshall, J., concurring).
36 See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
37 See Air Pirates, 581 F.2d at 758.
38 See Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).
39 See, e.g., Rogers v. Koons, 960 F.2d 301, 308 (2d Cir. 1992) (“[N]o copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated.”); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936) (L. Hand, J.) (“True, much of the picture owes nothing to the play; . . . but that is entirely immaterial; it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate.”).
40 See, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516–17 (1991) (holding that the law of libel overlooks minor inaccuracies and requires analysis of the challenged article as a whole); New York Times Co. v. Sullivan, 376 U.S. 254, 286 (1964) (holding that the fact that a published account was “substantially correct” provided a complete defense to a defamation claim even if parts were wrong); Moldea v. New York Times Co., 22 F.3d 310, 319 (D.C. Cir. 1994) (holding that most of the allegations offered to support a particular conclusion were true so that one false allegation was not actionable even if maliciously made).
41 See Saint Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1317 (3d Cir. 1994) (“Words take on meaning in the company of other words. They are gregarious. They take on tone and color from syntax and context. In defamation actions, words should be construed as they would be understood by the average reader.”).
42 See, e.g., Ringgold v. Black Entm’t Television, 126 F.3d 70 (2d Cir. 1997) (finding that a preliminary injunction might be appropriate against a television show that displayed portions of a copyrighted poster in the background for 26 seconds total); Woods v. Universal City Studios, Inc., 920 F. Supp. 62 (C.D. Cal. 1995) (finding the film Twelve Monkeys infringing because it used a copyrighted image of a chair); Aieleen Fajardo, Holy Case of Copyright Infringement, Batman!, 4 UCLA Ent. L. Rev. 263 (1997) (discussing a similar case over use of artwork in the film Batman); Francis X. Clines, Creator of Religious Art Prevails in ‘Devil’ Film, N.Y. Times, Feb. 14, 1998, at A6 (discussing lawsuit against the film Devil’s Advocate for containing an image of a sculpture reminiscent of a sculpture on the National Cathedral). But see Sandoval v. New Line Cinema Corp., 973 F. Supp. 409 (S.D.N.Y. 1997) (finding fair use in a momentary use of copyrighted photographs as background in the film Seven).
43 See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
44 Once we scrutinize copyright with an eye to its relationship to free speech, Robert Post’s claim that there is no one “free speech principle” that justifies the entire set of rights generally called “freedom of speech” seems much more persuasive. See Robert C. Post, Constitutional Domains: Democracy, Community, Management 16 (1995); Post, Recuperating First Amendment Doctrine, supra note 25, at 1271–73. Conventional candidates for such an overarching principle such as “distrust of government regulation,” see Geoffrey R. Stone, Autonomy and Distrust, 64 U. Colo. L. Rev. 1171, 1178 (1993), and “individual self-realization,” see Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 593 (1982), do not seem to fit all that well into an area of law that holds that all speech should be free, as long as it is not owned by someone else.
45 Cf. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (plurality opinion) (“When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices . . . the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review.”).
46 See United States v. Bodin, 375 F. Supp. 1265, 1267 (W.D. Okla. 1974) (“We do not find any denial of freedom of expression to the ‘tape pirate’. What he seeks is not the freedom to express himself artistically or otherwise, but the right to make exact and identical copies of sound recordings produced by others.”); Nimmer, Freedom of Speech, supra note 15, § 2.05[C], at 2–67; Goldwag, supra note 17, at 7 (“One who appropriates the expression of another is not engaging in self-fulfillment; rather, he is appropriating another’s labor without exerting any effort.”); Sobel, supra note 14, at 72; Leonard W. Wang, Note, The First Amendment Exception to Copyright: A Proposed Test, 1977 Wis. L. Rev. 1158, 1181.
47 See Nimmer, Freedom of Speech, supra note 15, § 2.05[C], at 2–66 to 2–67; Sobel, supra note 14, at 73.
48 See Judith Butler, Excitable Speech: A Politics of the Performative 27, 39 (1997) (discussing the ways in which using conventionalized expressions can actually increase the power of speech by evoking well-known associations). Professor Nimmer, who makes the argument that copying serves no self-fulfillment interest, writes in that “[T]here may be no audience at all, and yet the self-fulfillment function will sometimes be served by engaging in some forms of speech. An example of this is the satisfaction that may be experienced by singing a song aloud although there is no one to hear.” Nimmer, Freedom of Speech, supra note 15, § 1.03 at 1–50. Though he might be imagining that the lone singer has composed her own song, he probably isn’t, and she probably hasn’t. She enjoys her performance nonetheless, just as many people gain fulfillment by retelling stories they have heard before, see Jan Harold Brunvand, The Vanishing Hitchhiker: American Urban Legends and Their Meanings (1981), or even by making up stories about popular (copyrighted) television and movie characters, see Henry Jenkins, Textual Poachers: Television Fans and Participatory Culture (1992); Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 Loy. L.A. Ent. L.Rev. 651 (1997).
49 See, e.g., Stanton by Stanton v. Brunswick Sch. Dep’t, 577 F. Supp. 1560 (D. Me. 1984) (graphic quote from Time describing capital punishment could not be barred from a yearbook simply because it was powerful).
50 As noted by the Colorado Supreme Court:

The ideas expressed by defendant’s conduct may seem to some to be juvenile and inarticulate, and perhaps his actions are subject to interpretations other than we have given, but this does not strip his “speech” of constitutional protection. The First Amendment is not the exclusive property of the educated and politically sophisticated segment of our population; it is not limited to ideas capable of precise explication.

Colorado v. Vaughan, 514 P.2d 1318, 1322 (Colo. 1973); see also Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 569 (1995) (“[A] narrow, succinctly articulable message is not a condition of constitutional protection.”); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (black armband signifying opposition to Vietnam War was protected speech despite lack of specific message); Ingber, supra note 23, at 33–34 (discussing how bans on disruptive speech are biased against the poor, the ill-educated, and social outcasts).
51 See Ingber, supra note 23, at 11.
52See Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 120 S. Ct. 897, 919 n.3 (2000) (Thomas, J., dissenting) (“We regularly hold that speech is protected when the underlying basis for a position is not given.”).
53 I am not claiming that democracy is the only real justification for free speech. My point is that even a Meiklejohnian democracy-promoting theory, which often seems to limit the scope of the First Amendment, does not justify excluding copying from the realm of protected speech activities. Meiklejohn did not think that it was important for everyone to speak, only that everything worth hearing be said. In that sense, his self-government theory is consistent with copyright. But speech worth hearing and copyright owners’ speech will only overlap if copyright succeeds in the work I describe in Part II: generating new speech. Self-government is therefore unable to justify copyright without reference to copyright’s speech-promoting function. In addition, the controls on dissemination that copyright allows may prevent people from receiving worthwhile speech.
54 Such widening could be defended on the grounds that the traditional articulation of the safety valve justification assumes a particular kind of speaker, namely a relatively powerful (white male) speaker who feels that he has the option of violence if he cannot say what he wants to say. See, e.g., Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of Women, 106 Harv. L. Rev. 517, 560–61 (1993); Kathleen M. Sullivan, The Supreme Court, 1991 Term—Foreword: The Justice of Rules and Standards, 106 Harv. L. Rev. 22, 42 (1992). Other kinds of speakers might react in different, but also damaging, ways, such as sabotage.
55 See, e.g., The Free Music Philosophy (V 1.1), at http://www.ram.org/ramblings/philo-sophy/fmp.html (last visited Mar. 31, 1998); Negativland, Fair Use, at http://www.negativ-land.com/fairuse.html (last visited Mar. 31, 1998); Negativland, Stuff, at http://www.neg-ativland.com/nmol/negmisc.html (last visited Mar. 31, 1998) (advertising T-shirt with the logo “Copyright Infringement Is Your Best Entertainment Value”); The Viral Communications Anti-Copyright Policy, at http://www.cyborganic.com/people/vir-comm/projects/anticopy/ (last visited Mar. 31, 1998).
56 See Wendy J. Gordon, Asymmetric Market Failure and Prisoner’s Dilemma in Intellectual Property, 17 U. Dayton L. Rev. 853, 855 n.13 (1992) (“[L]egal prohibitions against copying pose noneconomic dangers that private modes of fencing-off do not, such as creating in the user population a perception of governmental compulsion, which could give rise to a species of resentment”); cf. Gordon, An Inquiry into the Merits, supra note 17, at 1345–46 (1989) (describing average consumers’ feeling that justice allows them to copy tapes they own or tape music off the air).
57Another related argument concerns the “checking value” of free speech. Vincent Blasi suggests that “the abuse of official power is an especially serious evil—more serious than the abuse of private power, even by institutions such as large corporations which can affect the lives of millions of people.” Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 521, 538. Maybe we should not be so concerned about private parties’ control over the content of expression for that reason. This argument does not answer the question of what level of scrutiny to give to copyright: Public violence may be worse at its worst than private violence, but private abuse is worth considering. See Goldstein, supra note 2, at 997 (discussing the private monopoly power of large corporations with control over many copyrights); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale L.J. 2431 (1998) (suggesting that private enforcement may be more dangerous to speech because it may be more pervasive and effective).
58 See Edward Samuels, The Idea-Expression Dichotomy in Copyright Law, 56 Tenn. L. Rev. 321, 398 (1989) (“The idea-expression dichotomy simply does not lend itself to . . . precise and easy application. . . . Even in the definition of what is idea and what is expression, the doctrine probably incorporates just as many perplexing issues as does the first amendment itself.”); Yen, supra note 2, at 396–97; Diane Leenheer Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 Wm. & Mary L. Rev. 665, 709 (1992).
59 Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930); see also Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) (“The test for infringement of copyright is of necessity vague. . . . Decisions must therefore inevitably be ad hoc. . . . [O]ne cannot say how far an imitator must depart from an undeviating reproduction to escape infringement.”).
60 See, e.g., Triangle Publ’ns, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1181 (5th Cir. 1980) (Brown, J., concurring in part and dissenting in part) (disagreeing with the claim that the “idea” of a TV Guide cover merged with its “expression” and claiming that the idea could have been represented without reproducing an actual TV Guide cover).
61 See Britten, supra note 1, at 78; Leslie A. Kurtz, Speaking to the Ghost: Idea and Expression in Copyright, 47 U. Miami L. Rev. 1221, 1228, 1232–33 (1993).
62 See, e.g., Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1167 (9th Cir. 1977); Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970); Yen, supra note 2, at 410–11.
63 See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 304 (1996).
64 Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (citation omitted); see also Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (footnotes and internal quotes omitted) (“[W]here a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms.”).
65 See Yen, supra note 2, at 425. Yen argues that copyright cases are more dangerous than libel and defamation cases because juries can understand concepts of falsity, malice, and recklessness more easily than they can tease out the difficult line between idea and expression. A copyright jury will be unpredictable, and thus pose a greater threat of chilling speech. See id. at 426; see also Volokh & McDonnell, supra note 57, at 2439 (“No longstanding social consensus tells us what is ‘idea’ and what is ‘expression’; no intuitively obvious line divides the two categories.”). My argument is similar to that made by some recent critics of sexual harassment law. See Kingsley R. Browne, Workplace Censorship: A Response to Professor Sangree, 47 Rutgers L. Rev. 579, 581–82 (1995); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1811–12 (1992). I take no position here on Browne and Volokh’s criticisms of Title VII; I merely wish to suggest that copyright, which sweeps far more broadly than harassment law and is unlimited in potential subject matter, presents great incentives to limit speech.
66 See, e.g., The X-Philes/Millenium Protest at http://database.simplenet.com/x/pro-test. html (last visited Oct. 30, 2000) (discussing an incident in which the Fox Network sent a threat letter to a university because of a student’s web page, and the university cut off the student’s internet access); cf. Browne, supra note 65; Volokh, supra note 65 (arguing that an employer’s interests diverge from its employees’ such that employers will suppress a broad range of employee speech in order to avoid the risks of a lawsuit). The Digital Millenium Copyright Act limits online providers’ liability for users’ infringement if they take down the accused material promptly. See 17 U.S.C. § 512 (1994). Though users can allege that their material is not infringing, the new law seems unlikely to change the basic dynamic.
67 See Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990). This test has evolved from what was earlier labeled an “extrinsic” and an “intrinsic” test of similarity. See Sid & Marty Krofft Television Prods., 562 F.2d at 1157. But it has maintained the two-step process of analytic dissection and then subjective, ordinary-observer comparison of the protected and allegedly infringing works.
68 Hustler Magazine v. Falwell, 485 U.S. 46, 55 (1988).
69 Grayned v. City of Rockford, 408 U.S. 104, 109 (1971).
70 Though the government does not often enforce the criminal copyright law, thus perhaps reducing the dangers of biased prosecution, the existence of a private right of action creates a large potential for arbitrary litigation, compounding the risks of the subjective test. The case law suggests that one may more readily criticize the Church of Latter-Day Saints using Mormon documents without fear of litigation than one may criticize Scientology using the same methods. See, e.g., Religious Tech Ctr., 82 F.3d at 423. Similarly, Disney engages in aggressive copyright enforcement, while Paramount is far more lenient for uses of its Star Trek characters and situations. Varying private responses, whether based on economic calculations or a concern for corporate “image,” further increase the arbitrariness and uncertainty of copyright law as a whole.
71 The Supreme Court has held that subjective employment practices can be suspect when they appear to cover for systematic biases. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 1000 (1987).
72 See Air Pirates, 581 F.2d at 758.
73 See Rosemont Enters, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966).
74 See 17 U.S.C. § 107 (1994).
75 See, e.g., New Era Publ’ns Int’l v. Henry Holt & Co., Inc., 873 F.2d 576, 584 (2d Cir. 1989); Roy Export Co. Establishment v. Columbia Broad. Sys., 672 F.2d 1095 (2d Cir. 1982); Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957, 960 (D.N.H. 1978); Denicola, supra note 16, at 293–99; Perlman & Rhinelander, supra note 1, at 394.
76 See, e.g., Stewart v. Abend, 495 U.S. 207, 237–38 (1990); cf. Blasi, supra note 57, at 553 (arguing that the First Amendment should vigorously protect facts, though “somehow we have come to think of the passionate, often uninformed, soapbox orator as the classic embodiment of our commitment to diversity”).
77 See Harper & Row, Publishers, Inc., 471 U.S. at 558.
78 On the other hand, preferring noncommercial works arguably does little to promote First Amendment goals, because most widely disseminated works are done for profit even when they also have a news reporting or public debate-enhancing purpose; the New York Times does not come for free. See, e.g., Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966). If we accept the basic idea that one can promote speech by harnessing the profit motive to encourage speech production, then an excessive emphasis on the noncommerciality of a use, defined as the absence of profit-seeking, could actually conflict with the proper understanding of the relationship between copyright and the First Amendment. See infra notes 226–237 and accompanying text.
79 See William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1661, 1692–94 (1988); Jessica Litman, Reforming Information Law in Copyright’s Image, 22 U. Dayton L. Rev. 587, 612 (1997) [hereinafter, Litman, Reforming Information Law]; Lloyd L. Weinreb, Fair’s Fair: A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1137 (1990); Lloyd L. Weinreb, Fair Use, 4 Fordham L. Rev. 1291 (1999); Wang, supra note 46, at 1176–77.
80 See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1106–07 (1990).
81 See, e.g., Princeton Univ. Press v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996); American Geophysical Union v. Texaco, 37 F.3d 881 (2d Cir. 1994); Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973); Duffy v. Penguin Books, 4 F. Supp. 2d 268 (S.D.N.Y. 1998); Television Digest, Inc. v. United States Tel. Ass’n, 841 F. Supp. 5 (D.D.C. 1993); Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
82 See Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, 69 Texas L. Rev. 1853, 1867–68 (1991) [hereinafter Coombe, Objects of Property]; Litman, Reforming Information Law, supra note 79, at 612–13.
My favorite piece of evidence that fair use is not carrying its speech-protective weight comes from a 1997 pamphlet distributed by Kinko’s. The guide informs the reader that copyrighted materials may not be reproduced by anyone without permission from the copyright owner. Fortunately, Kinko’s provides a “Copyright/Trademark Permission Request Form.” Assuming the customer can find the copyright owner, Kinko’s will fax the form to any United States location for free. The customer is to check all intended uses for the copy, from a list of the following: “Personal,” “News Reporting,” “Scholarship/Re-search,” “Commercial,” “Comment/Criticism,” “Teaching,” and “Scan into Computer.” Copying Guidelines (1997) (pamphlet).
This form is a perfectly rational response to uncertainty. The permission form identifies some fair use favorites, such as research and criticism, but only so that the copyright owner can decide whether or not to withhold permission. There is no indication that “Comment/Criticism” might justify copying without permission. Now, maybe the government cannot be held responsible for this distortion, though First Amendment libel law thinks so; maybe the well-known fact that the average copy shop ignores what happens at its self-service copiers blunts the force of the pamphlet’s blanket assertions. But if fair use is supposed to serve First Amendment goals, there should be some indication that it actually does so in practice, not just in theory.
83 See, e.g., Rosemont Enters., 366 F.2d at 307; Berlin v. E.C. Publ’ns, 329 F.2d 541, 544 (2d Cir. 1964). Paul Goldstein has given particular attention to the risks of copyright monopoly. A large corporation may own a number of interlocking copyrights, and be able to leverage them to exert undue market power. In such a case, he suggests, antimonopoly principles are First Amendment principles. See Goldstein, supra note 2, at 987, 1043.
84 See Rosemont Enters., 366 F.2d at 303.
85 See Marvin Worth Prods. v. Superior Films Corp., 319 F. Supp. 1269 (S.D.N.Y. 1970).
86 See Rohauer v. Killiam Shows, Inc., 379 F. Supp. 723 (S.D.N.Y. 1974). As Celia Goldwag points out, “It is not the merits of the court’s assessment of the relative values of Hughes and Valentino but the subjective nature of its calculation that is disturbing.” Goldwag, supra note 17, at 19.
87 See Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600, 1637 (1982). Even analysts who disagree with Gordon’s economic focus sometimes endorse a public interest test that makes quality judgments about challenged works:

Most would agree that the Zapruder film adds more to the democratic dialogue than do the Sunday comics. Likewise, a more limited public interest in cartoon characters or posters of cheerleaders warrants a more limited application of the fair use doctrine, and thus greater hesitancy in limiting the rights of the copyright holder on first amendment grounds.

Stephen S. Zimmerman, A Regulatory Theory of Copyright: Avoiding a First Amendment Conflict, 35 Emory L.J. 163, 197 (1986) (footnotes omitted).
88 See Regan v. Time, Inc., 468 U.S. 641, 648–49 (1984).
89 These reasons may also be profit-based, as criticism can destroy the market for a work even though it is not a substitute for that work. Courts refuse to consider negative press a cognizable harm, just as business lost by a restaurant when a competing restaurant opens up down the block will not be legally cognizable harm.
90 418 U.S. 241 (1974); cf. Pacific Gas & Elec., 475 U.S. at 14 (striking down a regulation that awarded access to utility-company mailing envelopes to critics of the utilities and criticizing the regulation for awarding access “only to those who disagree with appellant’s views and are hostile to appellant’s interests”).
91 See, e.g., Pacific Gas & Elec., 475 U.S. at 11 (plurality); Wooley v. Maynard, 430 U.S. 705 (1977); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
92 See 515 U.S. 557, 573 (1995).
93 See id. (“[T]he communication produced by the private organizers would be shaped by all those . . . who wished to join in with some expressive demonstration of their own.”).
94 As Fred Schauer writes, he cannot look at Leonardo DaVinci’s Mona Lisa the same way after having seen the version with a mustache added. See Frederick Schauer, The Ontology of Censorship, in Censorship and Silencing: Practices of Cultural Regulation 147, 157 (Robert C. Post ed., 1998) [hereinafter Schauer, Ontology].
95 See Police Dep’t v. Mosley, 408 U.S. 92, 101 n.8 (1972); United States v. O’Brien, 391 U.S. 367 (1968); Cox v. Louisiana, 379 U.S. 559, 562–564 (1965); NAACP v. Button, 371 U.S. 415, 438 (1963); Cantwell v. Connecticut, 310 U.S. 296, 307 (1940); Schneider v. State, 308 U.S. 147, 164 (1939); De Jonge v. Oregon, 299 U.S. 353, 364–65 (1937).
96 See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974) (holding that public figures do not need the protection of expansive libel law because they have access to the channels of communication to respond to attacks).
97 See Whitney v. California, 274 U.S. 357, 375–76 (1926) (Brandeis, J., concurring).
98 See Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine, 76 N.C. L. Rev. 557, 577 (1998); see also Henry H. Perritt, Jr., Property and Innovation in the Global Information Infrastructure, 1996 U. Chi. Legal F. 261, 283–85. Landes and Posner point out that the benefits of contractual anticopying provisions will vary greatly depending on how widely the work needs to be distributed to guarantee a return to the publisher and whether the work will be resold or publicly performed. See Landes & Posner, supra note 4, at 330. Thus, contractual provisions will not be particularly useful to some kinds of content providers. But the variable strength of contractual copying restrictions would, in a copyright-free world, shift content providers’ production to creative works that could be easily protected using contractual and other self-help mechanisms; that the mix of works would change does not necessarily mean that creative expression would disappear or even decrease on the whole.
99 See Gordon, An Inquiry into the Merits, supra note 17, at 1401; cf. Catherine Greenman, Taking Sides in the Napster War, N.Y. Times, Aug. 31, 2000, at E1 (discussing self-help measure of putting distorted “cuckoo’s egg” music files on free file-sharing services).
100 See generally Bell, supra note 98.
101 Maybe, though, effectiveness is not the point. Maybe ineffective counterspeech is constitutionally relevant, but effective countermeasures are mainly technical or legal, not speech themselves, and so they do not count. Yet contract and other forms of economic self-help have strong expressive components: the obvious message of a refusal to deal (or for that matter, of a password-protected system) is “do what I want or you may not have my business.” See Suzanne Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, 47 Rutgers L. Rev. 461, 524 n.288 (1995). Moreover, if effectiveness does not matter, then the possibility of counterspeech was a red herring from the beginning, covering up a judgment that certain speech cannot be suppressed no matter how harmful it is and how impossible it is to counter.
102 See Macrovision Corporation Continues Its Support of The Anti-Theft Cable Task Force, Bus. Wire, Feb. 13, 1998, available in LEXIS, Nexis Library, Curnws File.
103 Commentators have suggested many speech-based ways to make speech more enticing to convince consumers to choose a particular source, such as delivering it faster or more attractively, in order to maintain their market shares in the absence of copyright. See, e.g., Breyer, supra note 4, at 281; Gordon, An Inquiry into the Merits, supra note 17, at 1401; Perritt, supra note 98, at 283–85.
104 See Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. Chi. Legal F. 217, 222.
105 See Julie E. Cohen, A Right To Read Anonymously: A Closer Look at “Copyright Management” in Cyberspace, 28 Conn. L. Rev. 981, 997–98, 1021–22 (1996); Litman, Reforming Information Law, supra note 79, at 601–02; Perritt, supra note 98, at 302. Bell argues that automated use licensing will benefit users, because “fair use never comes for free.” Bell, supra note 98, at 580. Consumers incur search costs looking for information and opportunity costs when they photocopy, clip, or type quotes into their signature files. He argues that automated rights management will reduce such transaction costs, thus giving the consumer a net benefit despite the addition of a previously unnecessary payment to the copyright owner. See id. The conceptual flaw in Bell’s reasoning is that if copyright owners could not charge for fair uses, consumers’ net benefit would be much larger; the fact that they would retain some benefits if they had to pay does not prove that rights management is a good deal for them. (Arguably, many copyright owners will not allow their content to be made available electronically without rights management, but this is an empirical question whose answer is unknown.) Moreover, anyone who uses Yahoo!, LEXIS, or a variety of other electronic search engines is painfully aware that the new technology’s effects on search costs are uncertain at best. If the technology allows more charges by copyright owners but does not improve substantially for users, it will be a bad bargain.
106 Cf. Nixon, 120 S. Ct. at 905 (Stevens, J., concurring).
107 See Triangle Publ’ns, Inc. v. Knight-Ridder Newspapers, Inc., 445 F. Supp. 875 (S.D. Fla. 1978); Time, Inc. v. Bernard Geis, 293 F. Supp. 130 (S.D.N.Y. 1968).
108 Cf. Loyd Corp. v. Tanner, 407 U.S. 551, 570 (1972) (holding that a landowner may exclude unwanted speakers from his land).
109 See Richard A. Posner, When Is Parody Fair Use?, 21 J. Legal Stud. 67, 73 (1992) (arguing that the fair use defense should never be available for satiric uses because “as we do not suppose that writers should be allowed to steal paper and pencils in order to reduce the cost of satire, neither is there a compelling reason to subsidize social criticism by allowing writers to use copyrighted materials without compensating the copyright holder”).
110 See John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. Chi. L. Rev. 49, 84–85 (1996).
111 See id. at 79.
112 See Hardy, supra note 104, at 217. I disagree with Hardy on many points, not least of which is his decision to remove several factors that favor latitude for copiers, such as the non-profit-based incentives that people have to produce speech, from his calculus of rights. See id. at 221. Hardy discounts the extent to which authors use others’ works to spur their own creativity, assuming instead that a person who wishes to restrict access to his work to paying parties is making a choice that only affects his own incentives and ability to create. Hardy also gives the game away by restricting his analysis to situations in which copying is not amenable to a fair use analysis. See id. at 241. Deciding whether or not fair use applies often imposes a large transaction cost on its own; the difficulty of determining fair use in advance would justify a liability rule, particularly when a copier acted in good faith and mistook the limits of fair use.
113 See J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 400.

[J]ust as a legal realist might argue that economic liberty is more than the right to sign contracts of adhesion, we understand that expressive liberty is not simply the right to make noises in the air directed to no one in particular. . . . Effective communication, or rather its substantive possibility, is an unavoidable component of the liberty of speech, just as effective bargaining, or its substantive possibility, is an essential component of economic liberty.

Id. at 401.
114 The economic modeling of the market for information faces a troubling conceptual problem: The perfectly functioning market assumes perfect information. But when information is itself a marketable commodity, how can there be freely circulating full information in the perfect market? Information does not fit well in the market model because it is a condition of the market’s existence. See James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading, 80 Cal. L. Rev. 1413, 1420, 1443–48 (1992). As a result, a purely property-based vision of information will misdescribe the way information exchange actually works.
115 See McGinnis, supra note 110, at 85 n.149, 123.
116 Wendy Gordon has recently offered a property theory that tries to avoid these problems by incorporating restraints on what authors may appropriate, using the Lockean proviso that an appropriator must leave “as much and as good” for later takers. See Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533 (1993) [hereinafter Gordon, A Property Right in Self-Expression]. She believes that this approach accommodates free speech concerns without requiring explicit application of the First Amendment. See id. at 1539. The restraints she would impose look a lot like the idea/expression distinction and the fair use defense, though, and thus her property theory, while it avoids my criticisms of standard property theories, does not in my opinion adequately answer First Amendment questions about copyright.
117 See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). The Court has generally maintained that copyright is a creature of statute, not natural right. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984) (“The protection given to copyrights is wholly statutory.”); id. at 429–30 n.10 (“Copyright is not based upon any natural right the author has.”).
118 See McGinnis, supra note 110, at 83.
119 See Goldstein v. California, 412 U.S. 546, 570 (1973) (“[T]here is no fixed, immutable line to tell us which ‘human productions’ are private property and which are so general as to become ‘free as the air.’”); Stephen M. McJohn, Fair Use and Privatization in Copyright, 35 San Diego L. Rev. 61, 80–84 (1998) (arguing that any copyrighted work contains noncopyrightable elements that a property rights approach is ill-equipped to identify).
120See Nimmer, Copyright, supra note 16, at 1193.
121 See McJohn, supra note 119, at 77–78.
122 See David Fewer, Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada, 55 U. Toronto Fac. L. Rev. 175, 187–88 (1997) (noting that natural property rights concepts of copyright gloss over the dependence of authors on others’ expression).
123 Cf. Hardy, supra note 104, at 219 (arguing that low transaction costs justify choosing property rules over liability rules for copyright).
124 See Volokh & McDonnell, supra note 57, at 2445–46; see also Eugene Volokh & Mark Lemley, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998) (noting that a bill introduced in Congress would have declared the United States flag to be copyrighted and defined flag-burning and desecration as infringement).
125 As several commentators have noted, the existence of two apparently quite different justifications for finding copyright protection consistent with the First Amendment has also caused practical difficulties. The contraction of each doctrine is justified by reassuring free speech partisans that the other doctrine is still available, so First Amendment concerns do not receive serious consideration. See Jessica Litman, Copyright and Information Policy, Law & Contemp. Probs. 185, 204–06 (1992) [hereinafter, Litman, Copyright and Information Policy]; Netanel, supra note 63, at 303. One answer to this problem might be to make a First Amendment analysis an explicit part of copyright decisions, rather than claiming that fair use and idea/expression are themselves sufficient. See Nimmer, Freedom of Speech, supra note 15, § 2.05[C], at 2–73; Denicola, supra note 16, at 304–06; Litman, Copyright and Information Policy, supra, at 208; Wang, supra note 46, at 1159, 1177.
126 One might also argue that applying First Amendment principles is unnecessary in copyright because the Framers took free speech into account when they wrote the Constitution. As a matter of constitutional history, this claim is debatable at best. Copyright was first developed as a tool of official censorship. See Mark Rose, Authors and Owners 12, 15 (1993); Patterson, supra note 14, at 3. The presence of the Copyright Clause was one factor in the inclusion of the First Amendment in the Bill of Rights, because anti-Federalists feared that copyright could be used to reward favored authors and punish disfavored ones. See Fraser, supra note 17, at 19–20 & n.126. Furthermore, the claim that the Constitution already balanced free speech interests against copyright does not appear to distinguish the Copyright Clause from any other part of the Constitution, such as the Commerce Clause. See Nimmer, Freedom of Speech, supra note 15, § 2.05[C] at 2–57.
The existence of the Copyright Clause certainly does not imply that the Copyright Act as it exists now comports with the First Amendment as it exists now. Modern speech theory itself is rather young, constitutionally speaking. See, e.g., Schenk v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919). Before the First Amendment was applied against the states through the Fourteenth Amendment, see Gitlow v. New York, 268 U.S. 652 (1925), very few people thought to challenge long-accepted practices such as bans on blasphemy, obscenity, libel, and politically subversive speech. On its side, copyright has expanded substantially in recent years. The demise of the registration requirement has made copyright easier to obtain and harder for a potential user to determine. The copyright term has doubled and redoubled. The media covered by copyright law have expanded to include new forms and some older ones, such as newspapers, that were previously considered too ephemeral to warrant copyright protection. Performance, translation, and derivative rights have been added to the original replication rights, giving to the copyright owner the sole right to authorize adaptations and reworkings that were once up for grabs. See, e.g., Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853); Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841). As both kinds of information policy expand their scope, it is not surprising that they would collide.
Another important point about the claim that the Copyright Clause itself does the free speech balancing job is that it finesses a crucial question of institutional competence. The claim is not really that the Clause balances free speech concerns with other goals, but that Congress does in the copyright law it enacts. I take up the issue of congressional balancing in Part III. See infra notes 217–251 and accompanying text.
127 471 U.S. 539, 558 (1985). The contention that the Framers held this belief is probably wrong, given copyright’s historical connection to censorship. See Fraser, supra note 17, at 19–20.
128 See Nation Enters., 471 U.S. at 559.
129 See, e.g., Netanel, supra note 63, at 289.
130 See Nimmer, Freedom of Speech, supra note 15, § 2.05[C], at 2–66 n.184; see also Goldstein, supra note 2, at 990.
131 Cf. Bd. of Regents v. Southworth, 529 U.S. 217, 120 S. Ct. 1346, 1357–58 (2000) (Souter, J., concurring) (students’ First Amendment objection to activity fee was less persuasive because the purpose of the fee was to increase speech); Buckley v. Valeo, 424 U.S. 1, 92–93 (1976) (per curiam) (upholding publicly financed campaign subsidies because they facilitated First Amendment self-government goals).
132 The Association of American Publishers expressed the point with understandable firmness:

Freedom of expression is meaningless unless works are created and distributed. . . . [T]he copyright law assures that there is opportunity for recoupment of the intellectual and financial investment of authors and publishers, that their creative efforts are maintained, and that their works are made available to the public. It is essential to the purpose of the First Amendment.

Brief of Amicus Curiae Association of American Publishers, Inc., supra note 1 (footnote omitted); see also Goldwag, supra note 17, at 23; Shipley, supra note 17, at 986–87; Wang, supra note 46, at 1177.
133 Cf. Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 568 (1995) (noting that a parade’s expressive content is meaningless if no one sees it).
134 Wang, supra note 46, at 1178.
135 See, e.g., Cass Sunstein, A New Deal for Speech, 17 Hastings L.J. 137 (1994).
136 And a few unfixed; for example, one can infringe by publicly performing a copyrighted work even if the performance is not fixed.
137 For example, African Americans and Jews who were drawn to Communism were, in part, responding to discrimination, while the racial and ethnic composition of the American Communist Party added extra impetus to the movement for its suppression; disfavored groups can define themselves, and be defined, through regulated speech. See James Goodman, Stories of Scottsboro 27–29, 74–84, 204 (1994) (African Americans); David Suchoff, The Rosenberg Case and the New York Intellectuals, in Secret Agents: The Rosenberg Case, McCarthyism, and Fifties America (Marjorie Garber & Rebecca L. Walkowitz eds., 1995) 153, 158–59, 161 (Jews). Moreover, I see no strong reason why the First Amendment should limit its protection to cases in which the suppression of a definable group’s speech is intentional.
138 See generally Owen Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (1996); Freeing the First Amendment: Critical Perspective on Freedom of Expression 195–223 (David S. Allen & Robert Jensen eds., 1995); Catharine A. MacKinnon, Only Words (1993); Mari J. Matsuda et al., Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment 77–78 (1993); The Price We Pay: The Case Against Racist Speech (Laura J. Lederer & Richard Delgado eds., 1995); Cass Sunstein, Democracy and the Problem of Free Speech (1993); Cynthia L. Estlund, Freedom of Expression in the Workplace and the Problem of Discriminatory Harassment, 75 Tex. L. Rev. 687, 694–95, 735 (1997); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986); Owen M. Fiss, Why the State?, 100 Harv. L. Rev. 781 (1987); Sangree, supra note 101, at 559–60 (arguing that sexual harassment law furthers free speech values); Frederick Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L. Rev. 935 (1993).
139 See, e.g., Charles R. Lawrence, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 458–61; Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2323–26 (1989).
140 Cf. David L. Marcus, Faux Vonnegut Talk Sheds Light on Power of ’Net, Boston Globe, Aug. 13, 1997, at D1 (discussing problems that occur when a creative work is widely misattributed).
141 Catharine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1, 21 (1985); see also Catharine A. MacKinnon, Toward a Feminist Theory of the State 202 (1989).
142 Self-help arguments also align against copyright and hate speech/pornography regulation. See supra notes 27–40 and accompanying text.
143 See Perlman & Rhinelander, supra note 1, at 408 (“To the extent that the copyright is perceived as an economic device to advance the public interest in dissemination of intellectual products it is comparable to a broadcast license. Both are monopolies granted by the government to facilitate the distribution of information. Both bear the same public interest burden.”); see also Columbia Broad. Sys. v. Democratic Nat’l Comm., 412 U.S. 94 (1973); Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969).
144 See Red Lion, 395 U.S at 376 (“Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard.”).
145 See Thomas W. Hazlett, Physical Scarcity, Rent Seeking, and the First Amendment, 97 Colum. L. Rev. 905 (1997) [hereinafter Hazlett, Physical Scarcity]; Thomas W. Hazlett, The Rationality of U.S. Regulation of the Broadcast Spectrum, 33 J. L. & Econ. 133 (1990) [hereinafter Hazlett, Rationality].
146 Red Lion, 395 U.S. at 387. In Associated Press v. United States, the Supreme Court upheld antitrust controls on newspapers on similar grounds: “Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.” 326 U.S. 1, 20 (1945) (footnote omitted). Because the First Amendment is based on the belief that a diversity of available views is essential to a free society, its “command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom.” Id.
147 See FCC v. Nat’l Citizens Comm., 436 U.S. 775(1978); see also Time Warner Entm’t Co. v. FCC, 93 F.3d 957, 976 (D.C. Cir. 1996) (holding that public access to a diversity of views and sources of opinion is an interest “at the core of the First Amendment”).
148 See Turner I, 512 U.S. 622 (1994).
149 The Supreme Court’s recent decision in Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997), sheds some light on the question of when a group can be taxed to support others’ speech. Glickman upheld industry-specific taxes to support generic advertising for that industry’s products. Although people often have a right not to be compelled to pay for others’ speech, the Court held that the government could assess fees for product advertising. See Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). The Court reached this conclusion because, first, no producer had to change or restrain its own advertising, even though the regulation decreased the money available to pay for such ads. Copyright limits, too, never restrain authors, even if some authors make less money because of them. Second, the regulations did not compel speech from anyone; no producer was required to associate itself with the generic ads. A copyright owner is not compelled to repeat or endorse a fair use out of his or her own mouth. Cf. Pruneyard Shopping Ctr. v. Robins, 445 U.S. 74, 88 (1980). Third, there was no compulsion to endorse or finance any political or ideological views. In copyright, fair users might well advocate for some ideological viewpoint, but the government would not have chosen any such message, and in that sense the burden is less than that imposed by a government decision to make a plum producer pay for ads that say that all plums are tasty. Inasmuch as fair use is decentralized, it is not as worrisome as taxes on magazines or paper. And, like a progressive income tax, it may weigh most heavily on the “richest” works. Glickman’s underlying point was that compulsory taxes for advertising were justified, even though some people objected, because the contributions increased the welfare of the producers as a whole, just as limits on copyright increase the welfare of authors as a whole by allowing them to draw on sources of inspiration and information.
150 Turner I, 512 U.S. at 656.
151 See Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 374 (1999) (noting that barriers to multiple cable operators competing for each viewer are not really physical or technological but economic).
152 See generally Volokh & Lemley, supra note 124; Volokh & McDonnell, supra note 57. See also Expert Report of Professor Lawrence Lessig, A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d. 896 (N.D. Cal. 2000) (Nos. 99–5183, 00–0074), available at http://dl.nap-ster.com/lessig.pdf (last visited Oct. 31, 2000) (discussing intersection between free speech and copyright in the Napster Music file-sharing litigation); Brief of Amici Curiae Association of Am. Physicians & Surgeons, Inc. et al., A & M Records, Inc. v. Napster, Inc., 2000 U.S. App. LEXIS 18688 (July 28, 2000) (Nos. 00–16401, 00–16403), available at http:// dl.napster.com/amicus_physicians.pdf (last visited Oct. 31, 2000) (anti-abortion group opposing injunction against copyright infringement on the grounds that such injunctions could be used against other kinds of speech); Brief of American Civil Liberties Union et al., A & M Records, Inc. v. Napster, Inc., 2000 U.S. App. LEXIS 18688 (July 28, 2000) (Nos. 00–16401, 00–16403), available at http://www.aclunc.org/cyber/ napster-brief.html (last visited Oct. 31, 2000) (opposing copyright injunction on free speech grounds).
153 See, e.g., Richard Delgado & Jean Stefancic, Ten Arguments Against Hate-Speech Regulation: How Valid?, 23 N. Ky. L. Rev. 475, 484 (1996); Richard Delgado & David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation, 82 Cal. L. Rev. 871, 892 (1994); Martin E. Lee, The Price We Pay: The Case Against Racist Speech, Hate Propaganda and Pornography, Nat’l Cath. Rep., Oct. 4, 1996, at 17 (book review).
154 The incentive-based argument is not limited to left-leaning academics even outside the copyright field. For example, Justice White, dissenting in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), argued that private individuals should not face high barriers to libel suits: “It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems.” Id. at 400 (White, J., dissenting). See also Richard A. Epstein, Publication, and the First Amendment: The Dangers of First Amendment Exceptionalism, 52 Stan. L. Rev. 1003, 1033 (2000) (arguing that enjoining defamatory broadcasts would ultimately strengthen the press’s information-gathering ability by increasing its credibility).
155 See Ingber, supra note 23, at 4–5.
156 Buckley v. Valeo, 424 U.S. 1, 48–49 (1976).
157 Frank Michelman points out that “silencing” is usually as figurative as it is literal:

American constitutional law has long indulged in even more extended figurations of silencing, reaching back at least to the moment when it was resolved that punishment of speech already uttered, as well as prior restraint of yet-unuttered speech, can count as an abridgment of the freedom of speech and a cognate deprivation of liberty forbidden by the first and fourteenth amendments. The silencing wrought by criminalization of speech acts is less direct, more metaphorical, and no more reliably efficacious than that wrought (on Professor MacKinnon’s account) by pornography.

Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation, 56 Tenn. L. Rev. 291, 296 n.13 (1989) (citations omitted).
158 Standard copyright rhetoric merges the author and the entrepreneur, recognizing that the author who has an interest in making money will contract with people who can distribute her works. See Patterson, supra note 14, at 53–54. Even when we conceive of creativity as psychologically motivated, we expect that the impulse to get wide recognition for that creativity will be economic; why else would a creator sell her rights to a publisher?
159 See Balkin, supra note 113, at 409.
160 A related point is that speech is therefore, like other apparently unlimited “public” goods, vulnerable to slow erosion. Some theorists argue that using an idea never “depletes” it in the manner of a physical resource. See Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 Tex. L. Rev. 989, 1045 (1997); McJohn, supra note 119, at 106–07. But overexposure can drain an idea, or a kind of expression derived from that idea, of vitality; consider Seinfeld and the Spice Girls. Whether copyright protects against such overexposure or encourages it is another question entirely.
161 Cf. Richard Posner, Sex and Reason 284–90 (1992) (providing equation to determine whether abortion should be banned). I do not mean that these calculations will be easy or exact, just that factfinders (such as Congress) could gather relevant evidence and judge its credibility.
162 See Netanel, supra note 63, at 288.
163 See Benkler, supra note 151, at 400–08. Benkler argues that each increment of copyright protection encourages further centralization, which harms democracy and diversity. I understand him to be arguing about the negative effects of marginal increases in copyright, not copyright in general. See id. at 394 n.180, 401. I agree that a thin copyright focused on preserving incentives to create by protecting against wholesale, nontransformative copying would be best for speech. Especially as Benkler’s explanation of why increased rights increase centralization relies heavily on large organizations’ ability to create derivative (transformative) works from their stockpiles, I doubt his analysis would produce widely divergent results from mine.
I suspect, however, that Benkler romanticizes the possibility of a less-copyrighted world. He argues that concentrated media systems are likely to exclude challenges to the prevailing wisdom and translate unequal economic power into unequal power to set the terms of public debate. See id. at 377–78. But how would small, diverse sources obtain a wide audience without the possibility of large-corporation alliances for distribution, as his exemplar Matt Drudge (briefly) did? Cf. David Segal, Big Record Labels Start to Like the Sound of Online Music, Wash. Post, Jan. 30, 2000, at H1 (discussing large labels’ distributional and content-sorting advantages). Also, because Benkler focuses on the individual as the source of meaning, he appears to discount the value of common culture—in today’s economic language, the “network effects” of having The Wizard of Oz as a common referent.
Finally, Benkler does not fully defend the argument that concentrated media giants decrease diversity. Even Disney produces arguably blasphemous movies through an affiliate. Some economic theory suggests that large corporations will supply some content that appeals to specialized tastes as well as to the median taste in order to capture as much of the market as possible; if a provider can offer only one TV channel, it may well program for the median taste, but if it has three it may try to appeal to the top three groups. See, e.g., Daniel L. Brenner, Ownership and Content Regulation in Merging and Emerging Media, 45 DePaul L. Rev. 1009 (1996); Benjamin M. Compaine, The Impact of Ownership on Content: Does it Matter?, 13 Cardozo Arts & Ent. L.J. 755 (1995). Indeed, in my view, the risk that combining conglomerate power with the modern ability to target subsets of an audience will lead to too much fragmentation is at least as great as the risk of viewpoint homogenization. Every reader can now receive a personalized newspaper telling her only about things she already knows she cares about. The risk in this scenario is that we will lose any common culture. See Todd Gitlin, Public Spheres or Public Sphericules?, in Media, Ritual and Identity 168 (Tamar Liebes & James Curran eds., 1998); Elihu Katz, And Deliver Us from Segmentation, in Breaking up America: Advertisers and the New Media World (Roger G. Noll & Monroe Joseph Turow eds., 1997). I believe that copyright and its limits can help us navigate a path between Scylla and Charybdis.
164 Cf. FCC v. Pacifica Found., 438 U.S. 726, 776–77 (1978) (Brennan, J., dissenting) (discussing how certain groups are proportionally more likely to express themselves using the seven dirty words, so suppression of broadcasts using those words will be systematically biased against those groups and the viewpoints those groups are proportionally more likely to hold).
165 Thus, facts get very little copyright protection no matter how hard it was to unearth them or express them, while fiction is heavily favored by comparison. Even within fiction, a hierarchy of creativity prevails. A hackneyed plot with stock characters gets a thin copyright, see Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1936) (Hand, J.), while innovative, whimsical puppets living on their own strange island get much stronger protection, see Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977). This allocation of rights favors the iconoclast, the author of Infinite Jest over the author of a Harlequin Romance. Harlequin and other romance publishers have style guidelines that indicate exactly what sort of plots are acceptable, what type of jobs the hero and heroine should have, what kind of premarital sexual activity is permissible, when first sexual contact should occur, and how many words the novel should contain. See Carol Thurston, The Romance Revolution: Erotic Novels for Women and the Quest for a New Sexual Identity 223–26 (1987). Even one that met conventional standards of “good writing” would have trouble proving that anything other than verbatim copying constituted an infringement. Copyright also favors the kinds of creativity men have historically dominated over the kinds of creativity women have historically dominated, since women’s art has often been variations on a theme, like quilting, instead of distinct creations. See Shelley Wright, A Feminist Exploration of the Legal Protection of Art, 7 Can. J. Women & L. 59, 90–94 (1994).
166 See, e.g., Christine Haight Farley, Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?, 30 Conn. L. Rev. 1 (1997). I do not endorse Farley’s notion that copyright’s boundaries should be expanded and its term extended in perpetuity to protect folklore, but she cogently sets forth the ways in which copyright’s definitions exclude what many people consider the most valuable aspects of traditional culture.
167 See, e.g., Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978); Jenkins, supra note 48; Coombe, Objects of Property, supra note 82; Nels Jacobson, Note, Faith, Hope & Parody: Campbell v. Acuff-Rose, “Oh, Pretty Woman,” and Parodists’ Rights, 31 Hous. L. Rev. 955, 1015–18 (1994). Rosemary Coombe notes that copyright piracy is often carried out by immigrants struggling to survive and others at the margin of American society. See Rosemary J. Coombe, The Cultural Life of Things: Anthropological Approaches to Law and Society in Conditions of Globalization, 10 Am. U. Int’l L. & Pol’y 791, 817–18 (1995).
168 See Mark Gunderson, Copyright . . . For Poorer or Richer, at http://www.icomm.ca/ macos/copyrite.txt (last visited Jan. 15, 1999); VirComm, Copyright Law Is Wrong, at http://www.cyborganic. com/people/vircomm/projects/anti-copy (last visited Jan. 15, 1999). This could be described as a problem of risk aversion—copyright owners do not want to risk the value of their property, and thus they are less likely to make really creative or controversial use of their works than copiers are. See McJohn, supra note 116, at 106.
169 See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) (one of several cases involving “appropriation artist” Jeff Koons who copies elements of popular works as sardonic commentary on them); Air Pirates, 581 F.2d 751.
170 John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1499 (1975).
171 See Schauer, Ontology, supra note 94.
172 See Gordon, A Property Right in Self-Expression, supra note 116.
173 Kent Greenawalt, Speech, Crime, and the Uses of Language 292 (1989).
174 See id.
175 Richard Delgado, Toward a Legal Realist View of the First Amendment, 113 Harv. L. Rev. 778, 792–93 (2000) (reviewing Steven H. Shiffrin, Dissent, Injustice, and the Meanings of America (1999)) (emphasis added).
176 Id.
177 See id. Copying and hate speech are not different just because a minority speaker’s incentives and attractiveness are affected by speech distant in time and place. Copyright, too, assumes that the regime governing speech in general will affect future instances of speech.
178 As discussed in Section I.B, this distinction between copyright and the radical theories does not track the actual law of copyright, which often imposes liability on a copier whose viewpoint is clearly distinct from that of the copyright owner or who participates in a different market, for example by parodying the copyrighted material. Nevertheless, the distinction between types of speech incentives and disincentives can be defended if we distinguish economic harms from dignitary harms and defend copyright only as a response to the former.
179 Kent Greenawalt makes a similar move. He recognizes that prohibitions on encouraging political assassination and violent revolution favor peaceful ideologies over violent ones, but argues that “the preference for urging obedience to law over urging violence is not itself the kind of preference that is strongly at odds with a principle of free speech,” even if it may have uneven effects on differing viewpoints. Greenawalt, supra note 173, at 122. To him, the ban on criminal advocacy (if cabined to require an imminent likelihood of harm) is an acceptable content judgment, perhaps like other acceptable content judgments that favor local television stations over cable providers or creators of copyrightable works over infringers (also narrowly tailored).
180 Cf. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 611 n.6 (1998) (Souter, J., dissenting) (discussing the “communicative element inherent in the very act of funding [art] itself”).
181 See supra note 55.
182 See, e.g. MacKinnon, supra note 138, at 108.
183But cf. Lloyd L. Weinreb, Copyright for Functional Expression, 111 Harv. L. Rev. 1149 (1998); Weinreb, Fair Use, supra note 79, at 1305–06 (noting the absence of significant empirical evidence about copyright’s incentive effects).
184 See Fraser, supra note 17, at 10.
185 See Associated Press v. United States, 326 U.S. 1, 19 (1945) (“[The First Amendment] rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.”).
186 See Turner I, 512 U.S. at 677 (O’Connor, J., concurring and dissenting in part) (“Preferences for diversity of viewpoints, for location, for educational programming, and for news and public affairs all make reference to content.”).
187 See Pacific Gas & Elec. Co. v. Public Util. Comm’n, 475 U.S. 1, 20 (1986) (“[T]he State’s asserted interest in exposing appellant’s customers to a variety of viewpoints is not—and does not purport to be—content neutral.”); Lemley & Volokh, supra note 124, at 2447. Then-Justice Rehnquist’s dissent, by contrast, argues that government decisions that affect the mix of content available to the public are not problematic unless the action “approximates that of direct content-based suppression of speech.” Pacific Gas, 475 U.S. at 29 (Rehnquist, J., dissenting).
188 See Volokh & McDonnell, supra note 57, at 2447 (“[C]opyright liability turns on the content of what is published. True, the law draws no ideological distinctions. . . . But while this might make the law viewpoint-neutral, it doesn’t make it content-neutral.”).
189 The fear is either that libel law will have a disparate impact on certain groups that will be impossible to tease out case-by-case or that too much speech will be suppressed regardless of whether any identifiable group is affected. As I argued in Section I.A, one could make the same case against copyright.
190 While copyright’s main incentive function is to encourage varied expression, that in itself tends to encourage different viewpoints and different subjects. Even the relatively idea-free example of Hollywood moviemaking shows how the principle works. Titanic was a success, but only one studio reaped the direct monetary benefits of the movie; others had to figure out how to take advantage of the audience’s passion for the story. Thus Leonardo DiCaprio gets to star in many other movies, with different stories; thus we get another summer of disaster films; thus we get a slew of period pieces. All these are strategies for taking part of Titanic, some part that copyright does not protect, and turning it into copyrighted gold. In the process, we get different ideas, not just different expression.
191See David A. Strauss, What Is the Goal of Campaign Finance Reform?, 1995 U. Chi. Legal F. 141 (discussing various justifications proffered by reformers).
192 See, e.g., Owen M. Fiss, Money and Politics, 97 Colum. L. Rev. 2470, 2479–80 (1997) [hereinafter Fiss, Money and Politics] (arguing that a democratic understanding of the First Amendment requires the equalization of political opportunity through regulations on campaign spending).
193 See FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 496–97 (1985) (stating that “preventing corruption or the appearance of corruption” is “the only legitimate compelling government interest thus far identified for restricting campaign finances”); Fiss, Money and Politics, supra note 192, at 2478–79 (arguing that unrestricted campaign finance spending gives untoward power to the wealthy, distorting political equality contrary to First Amendment principles).
194 Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 120 S. Ct. 897, 905 (2000) (Breyer, J., concurring).
195 See, e.g., Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994).
196 See Buckley v. Valeo, 424 U.S. 1, 17 (1976).
197 See, e.g., Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 298–300 (1981); Buckley, 424 U.S. at 48–49. Academic critics of campaign finance reform also argue that government nonintervention is the natural baseline for a regime of free speech. See, e.g., Lillian R. BeVier, Campaign Finance Reform: Specious Arguments, Intractable Dilemmas, 94 Colum. L. Rev. 1258, 1260–61 (1994).
198 See Blasi, supra note 195, at 1292 (discussing ways in which facially neutral campaign finance reform might favor certain ideological interests over others).
199 Robert Post, Equality and Autonomy in First Amendment Jurisprudence, 95 Mich. L. Rev. 1517, 1526 (1997) (reviewing Owen Fiss, Liberalism Divided: Freedom of Speech & The Many Uses of State Power (1996)).
200 This is in part because the government requires broadcast licensees to serve the public interest by offering such programming, while it does not similarly demand public interest programming from cable providers, though it does require that cable providers allow certain favored groups (local government and educational organizations) to access some cable channels.
201 Turner I, 512 U.S. at 640.
202 See id. at 640–41.
203 391 U.S. 367 (1968).
204 See Turner I, 512 U.S. at 662.
205 Id. at 663. Justice Breyer’s Turner II concurrence explicitly recognized that the Court was balancing speech interests on both sides—cable carriers on one, the public interest in having a wide variety of sources available on the other. See Turner II, 520 U.S. at 226 (Breyer, J., concurring). Because important First Amendment interests existed on both sides, Justice Breyer found that the key question was one of “fit.” The Court had to determine whether significantly less restrictive alternatives existed and whether the balance between speech-enhancing and speech-restricting functions was reasonable. See id.
206 See Turner I, 512 U.S. at 664.
207 See id. at 664–65.
208 See id. at 642.
209 Id. at 643.
210 Turner I also seems to conflict with Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995),the parade case. Hurley noted that the organizers of Boston’s St. Patrick’s Day parade let in multiple messages, often disconnected from one another, so that it was hard to say that there was any particular theme to the parade. See id. at 569.Yet “a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech.” Id. at 569–70. Even though there was no particular message, the parade could not be forced to add another message-thread to the overall tapestry.
Hurley distinguished Turner I because the Hurley Court thought that people would believe that the organizers endorsed any signs in the parade, even though the evidence showed that the organizers almost never exercised control over signs. See id. at 575.The Court found that parades are not disconnected units like television programming but unified wholes, even when they lack a unified message. See id. at 576.This distinction seems mistaken. Like a parade, television is often perceived as a unified experience, with disparate interlaced segments reflecting on one another. See, e.g., James B. Twitchell, Carnival Culture: The Trashing of Taste in America 195–96 (1992) (discussing studies on television watching habits that reveal that average viewers treat watching as a process rather than as a series of discrete events). Moreover, cable operators cannot disclaim any endorsement of NBC or PBS, because they are prohibited by law from altering the broadcast signal on retransmission, so the Court’s conclusion that cable operators can dissociate themselves from must-carry channels is not persuasive. The Court believed that “given cable’s long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator.” Turner I, 512 U.S. at 655. That long history, however, was not produced by must-carry; carriage was voluntary, and the natural assumption of the average viewer would more likely be that broadcast carriage, like carriage of HBO and Showtime, was and continued to be the result of the cable operator’s choice. The Court noted that viewers are frequently apprised of the broadcaster’s identity. See id. Yet parade-goers in Boston were apprised of GLIB’s identity, and the bill recipients were apprised of the public interest group’s identity in Pacific Gas & Electric Co. v. Hudson. It was the forced inclusion of another’s views, despite the explicit identification of that other, that the Court found objectionable in those cases. Finally, the Hurley Court also invoked monopoly considerations to distinguish Turner I: “The Government’s interest in Turner Broadcasting was not the alteration of speech, but the survival of speakers.” Hurley, 515 U.S. at 577. The Court also emphasized that it was clear which message the parade organizers disfavored, by letting in so many and excluding so few. See id. at 574. It is less clear which message cable providers were trying to exclude when they opposed must-carry.
211 See Turner I, 512 U.S. at 643–44. When the D.C. Circuit analyzed other provisions of the Cable Act, it used Turner analysis to uphold provisions mandating leased access to a percentage of channels on cable systems reserved for programmers unaffiliated with cable operators. The Court held that there was no content discrimination involved because the law’s preference operated in favor of certain speakers—those unaffiliated with cable companies—and not in favor of any message. See Time Warner Entm’t Co. v. FCC, 93 F.3d 957, 969 (D.C. Cir. 1996) (distinguishing “sources” of information from “substance”). The analogy to copyright is simple: Congress can prefer author-sources to copier-sources.
212 See Turner I, 512 U.S. at 648. The burden on cable operators was also content neutral, because the reduction in channel capacity available for their own choices operated across the board and not upon channels with a particular viewpoint. See id. at 645.
213 See, e.g., William E. Lee, Manipulating Legislative Facts: The Supreme Court and the First Amendment, 72 Tul. L. Rev. 1261 (1998); Comment, Constitutional Substantial-Evidence Review? Lessons from the Supreme Court’s Turner Broadcasting Decisions, 97 Colum. L. Rev. 1162 (1997); Note, Deference to Legislative Fact Determinations in First Amendment Cases After Turner Broadcasting, 111 Harv. L. Rev. 2312 (1998).
214 See Turner II, 520 U.S. at 191–95. Essentially, the Turner cases applied the standard rule that a content-neutral regulation will be sustained if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary, but took the requirement that the regulation actually advance the identified government interest more seriously than O’Brien had. See, e.g., id. at 191 (referring to Congress’s “explicit factual findings” and predictions codified in the statutory statement of purpose).
215 Id. at 195.
216 See Comment, supra note 213, at 1175–76.
217 Even if insurance can make some entities risk-neutral, all that is really required to make this argument work is that some entities are risk-averse and that they are randomly distributed between the universes of potential copyright plaintiffs and potential defendants, universes which overlap. Volokh and McDonnell discuss the possibility that copyright liability is just a cost of doing business, not a drag on speech. As with libel law, expansive copyright will deter even risk-neutral entities from producing material with a lower profit potential because of the risk of liability, thus changing (perhaps even decreasing, when investors shift from newspaper to toilet paper) the kinds of speech available. See Volokh & McDonnell, supra note 57, at 2448.
218 See supra note 58 and supra note 79. Volokh and McDonnell are the first to recognize the vagueness problem on both sides. See Volokh & McDonnell, supra note 57, at 2449. I suspect this belated recognition stems precisely from the increasing convergence of copyright’s “speech on both sides” paradigm with the radical theories of speech.
219 See Volokh & McDonnell, supra note 57.
220 See William Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1 (1997).
221See Woods v. Universal City Studios, Inc., 920 F. Supp. 62 (S.D.N.Y. 1990).
222 The copyright lawyers consulted by Volokh and McDonnell seem fairly split on the question of whether more appellate review of idea/expression cases would help. Some thought that nothing would clarify the distinction. See Volokh & McDonnell, supra note 57, at 2456. One thought that “the more cases decided, the more likely it is that you can find a rationale for your argument because not all courts are going to agree.” Id. at 2457 (quoting Blaine Greenberg). David Nimmer thought that life would be easier “if there were fewer benchmark cases.” Id.
223 Cf. Volokh & McDonnell, supra note 57 (discussing copyright lawyers’ reasons for paying more attention to circuit court cases than to district court cases). That’s not peanuts, but it’s not terribly principled either.
224 Cf. Weinreb, Fair Use, supra note 79, at 1309 (arguing that unpredictability cannot be eliminated from fair use because the doctrine is inherently multifaceted and situation-dependent).
225 My defense of vagueness resembles the argument in Dan M. Kahan, Ignorance of Law Is an Excuse—But Only for the Virtuous, 96 Mich. L. Rev. 127 (1997). Kahan argues that vagueness in the criminal law is often a good thing, because it encourages moral behavior rather than immoral adherence to the letter of the law. Copyright’s vagueness may be desirable inasmuch as bright-line rules would be more destructive of authors’ incentives (whether as primary creators or as users of elements of copyrighted material). One significant distinction between Kahan’s argument and mine is that Kahan sees the “chilling” effect of vague criminal laws as a good thing, whereas I suspect that the dangers created by copyright are a necessary price for flexibility. However, Kahan’s argument that good citizens should ask themselves whether their conduct is right, as well as whether it is lawful, resonates in copyright. Copyright may be easiest to obey when it tracks our moral norms about ownership, plagiarism, and rights in one’s own books and tapes. See Weinreb, Fair Use, supra note 79, at 1307–08.
226 521 U.S. 844 (1997).
227 See id. at 850.
228 The current distinction also invites courts to stretch the meaning of “commercial” when they really mean that a noncommercial use may cause market harm. See, e.g., Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000) (finding that copying religious text that was given away was “commercial” because it attracted new members to a church); A & M Records v. Napster, Inc., 114 F. Supp. 2d 896 (N.D. Cal. 2000) (finding individuals’ free music file-sharing “commercial” because carried out on a large scale among strangers).
229 See, e.g., American Geophysical Union v. Texaco, 60 F.3d 913, 937 (2d Cir. 1995) (Jacobs, J., dissenting); Weinreb, Fair Use, supra note 79, at 1296.
230 Cf. Central Hudson Gas & Elec. Co. v. Public Serv. Comm’n, 447 U.S. 557, 564 n.6 (1980); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 772 n.24 (1976).
231 See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
232See Bolger v. Young Drug Prods. Corp., 463 U.S. 60, 66–67 (1983).
233 Cf. Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1262 (2d Cir. 1986); William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L.J. 667,679–81 (1993) (suggesting a continuum of commerciality).
234 Cf. Leval, supra note 80, at 1116 n.53 (“Perhaps at the extreme of commercialism, such as advertising, the statute provides little tolerance for claims of fair use.”).
235 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 (1994) (holding that commercial use weighs against a finding of fair use, but it is only one factor and “even the force of that tendency will vary with the context”); Maxtone-Graham, 803 F.2d at 1262 (holding that “the commercial nature of a use is a matter of degree” and that an anti-abortion book sold for profit was first and foremost a work of political opinion such that its commercial character did not weigh against a finding of fair use); Wojnarowicz v. American Family Ass’n, 745 F. Supp. 130, 144 (S.D.N.Y. 1990) (holding that, while a fundraising motivation for a political pamphlet had some commercial purpose, its preeminent purpose was to express a political viewpoint, and the latter purpose outweighed the commerciality).
236 Distinguishing message from motive can also distinguish various types of ads. Therefore, I disagree with the statement in Campbell that parodying a work to advertise an unrelated product is entitled to less protection than the sale of a parody for its own sake. See Campbell, 510 U.S. at 585. An ad that evokes copyrighted material to make an unrelated product attractive, such as a beer ad that satirizes ads for batteries, see Eveready Battery Co. v. Adolph Coors Co., 765 F. Supp. 440 (N.D. Ill. 1991), or imitates a rap group’s performance, see Tin Pan Apple, Inc. v. Miller Brewing Co., 737 F. Supp. 826 (S.D.N.Y. 1990), is arguably more deserving of fair use protection than an ad for a product that itself contains copyrighted work and trades on the appeal of that work to sell the product, see Dallas Cowboy Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184 (5th Cir. 1979). An ad can potentially try to sell beer and lampoon social phenomena at the same time. If the Coors family can donate beer money to political causes, it should also be allowed to get extra bang for its advertising bucks by social commentary in ads—the advertising version of doing good by doing well. Cf. Nina Munk, Levi’s Ongoing Quest for Street Cred, Fortune, Feb. 1, 1999, at 40 (discussing Levi’s campaign in which young people talk “frankly” about cutting school and the benefits of inequality under capitalism).
237 The true believer, of course, may well continue to proselytize (or infringe) no matter what the sanctions; punishment may even seem like vindication to him. See Negativland, supra note 55. But many people may not have the ability to continue to communicate their messages if their websites are shut down or their presses forfeited. They may continue to believe, but their beliefs will not be readily available to the rest of us.
238 In Turner I, Justice Kennedy found that congressional judgments are entitled to substantial deference, but that courts must still exercise independent judgment when First Amendment rights are at issue. He defined the judicial obligation as assuring that “Congress has drawn reasonable inferences based on substantial evidence.” 512 U.S. 622, 666 (1994); see also Perlman & Rhinelander, supra note 1, at 405 (arguing that courts should not disrupt congressional judgment about the particular balance in copyright cases).
239 See Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972).
240 Id. at 530.
241 383 U.S. 1, 6 (1966).
242 See 499 U.S. 340 (1991). Jane Ginsburg has argued that Congress can do under the Commerce Clause what it may not do under the Copyright Clause, at least for factual compilations such as yellow pages. See Jane C. Ginsburg, No “Sweat”? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 Colum. L. Rev. 338, 367–84 (1992). I assume for my purposes that if the First Amendment invalidates a particular vision of copyright, a similar law passed under the Commerce Clause would also fail. Given the speech-promoting functions of copyright, we should be suspicious of attempts to make information policy through the Commerce Clause when the copyright power appears inadequate.
243 See United Christian Scientists v. Christian Sci. Bd. of Dirs., 829 F.2d 1152 (D.C. Cir. 1987) (rejecting a congressional attempt to extend the copyright in Mary Baker Eddy’s works for an extra period as unconstitutional favoritism toward religion). But see San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987) (discussing various super-intellectual property rights that have been granted to favored organizations such as the U.S. Olympic Committee).
244 In Jane Ginsburg’s opinion, for example, Congress can supply content to the Copyright Clause by defining the limits of copyright. See Ginsburg, supra note 242, at 375–82. Yet note how uncertainty worked for the Religious Freedom Restoration Act. Without evidence of widespread suppression of religious practices, Congress was not allowed to expand protection for religion beyond that which courts were prepared to give. See City of Boerne v. Flores, 521 U.S. 507 (1997). In the case of copyright, a claim that authors will have to stop writing if they cannot get more years of exclusive rights, strengthened performance rights or the like cannot really suffice to justify expanded protection. Instead, courts should demand rigorous findings from Congress that adequately set forth the reasons for altering the balance. Cf. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (finding evidence of trademark infringement by states insufficient to justify abrogation of Eleventh Amendment immunity).
245 See Mitchell Bros. Film Corp. v. Cinema Adult Theater, 604 F.2d 852, 860 (5th Cir. 1979) (holding that Congress can find that a class of works promotes the useful arts without requiring proof that each work in the class does so).
246 See Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 120 S. Ct. 897, 900 (2000).
247 See Jessica D. Litman, Copyright, Compromise, and Legislative History, 72 Cornell L. Rev. 857 (1987) [hereinafter Litman, Compromise]; see also Jessica Litman, Revising Copyright Law for the Information Age, 75 Or. L. Rev. 19, 22–23 (1996) [hereinafter Litman, Revising].
248 Sometimes even the industry members who agreed on compromise positions did not agree on what those provisions meant. See Litman, Compromise, supra note 247, at 877, 887–88.
249 See id. at 894–95.
250 See Robert C. Denicola, Freedom to Copy, 108 Yale L.J. 1661, 1685–86 (1999). History should make us particularly leery when a Congress pressured by established media industries tries to protect them from new media, which have in the past thrived in the absence of specific regulation. See Litman, Revising, supra note 247, at 27–29; see also Home Recording of Copyrighted Works: Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Committee, 97th Cong. (1982) (testimony of Howard Wayne Oliver, AFTRA) (testifying that audio and video tape recording had to be curtailed to save movies and TV). New media usually mean new market participants, new voices and new listeners, see Litman, Revising, supra note 247, at 29; this connection to the First Amendment’s diversity-promotion goal should not be ignored because of fears that established firms will not be able to compete.
251 Pub. L. No. 105–298, 112 Stat. 287 (1998) (codified at scattered sections of 17 U.S.C.). See Netanel, supra note 63, at 369; Nimmer, Copyright, supra note 16, at 1193 (“[W]hen we consider copyright protection beyond the life expectancy of the author’s children and grandchildren the balance between speech and copyright must shift. The real, if relatively slight, speech interest in expression remains constant, while the copyright interest in encouraging creativity largely vanishes.”). Nimmer’s assessment of the balance of incentives is probably biased in favor of copyright; given the present discounted value of the revenues that will accrue to an author’s grandchildren, even if the copyright remains quite valuable throughout a lengthened term, the incremental incentive to creativity of a copyright that extends much after an author’s death is vanishingly small.