The Freedom of Imagination: Copyright’s Constitutionality

Abstract

In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America. Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic free speech obligations and standards of review. It routinely produces results that, outside copyright's domain, would be viewed as gross First Amendment violations. Outside of copyright, for example, a court order suppressing a book (especially in the form of a preliminary injunction) is called a "prior restraint," "the most serious and the least tolerable infringement on First Amendment rights." In copyright law, however, such orders are routine. Just last year, in a much-publicized case, a federal district court enjoined publication of The Wind Done Gone, the novel about a slave born on Gone with the Wind's Tara plantation. (Disclosure: I was counsel to Alice Randall, author of The Wind Done Gone, in this litigation.)