112 Yale L.J. 1 (2002)

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.)

Or again, in 1995, a former member of the Church of Scientology posted on the Internet portions of the Church's "spiritual healing technology" materials, with the intention of exposing the Church as a "fraud." For this offense, police searched the individual's home for seven hours, seized books, and went through his personal computer files, copying some and erasing others, with the help of a "computer expert" provided by the Church. In the ensuing litigation, did the district court express concern about police officers assisting a "church" to suppress dissent? On the contrary, the court held that the defendant was likely guilty of copyright infringement and therefore issued a prior restraint "prohibiting any further copying" of Church materials.

What is particularly disturbing about these cases is that both district courts expressly declined to consider the defendants' First Amendment arguments. In this respect, the two cases were typical. Courts consistently hold that copyright does not have to answer to First Amendment scrutiny. "[C]opyrights," as the District of Columbia Circuit recently put it, "are categorically immune from challenges under the First Amendment."

It is time to put copyright on trial. The familiar explanations of copyright's insulation from the First Amendment are wholly inadequate. A new First Amendment analysis of copyright is needed.

This means, however, that we also need an account of the First Amendment status of art and entertainment. Art and entertainment are central to (although not exhaustive of) the business of copyright; how central are they to the First Amendment? A painting by Pollock is "unquestionably shielded" by current free speech law, but what makes it so is less clear. Are video games--typical subjects of copyright law--similarly protected? What does their protectedness depend on, and would the level of protection change if they qualified as "art"? Thinking through copyright's constitutionality requires answers to these questions.

Contemporary First Amendment scholarship offers two principal accounts of art's protection: one based on art's contribution to democracy, the other based on art's contribution to individual self-realization. Both approaches are driven by preconceptions of First Amendment theory; neither is satisfactory. The first paints art too politically, the second too narcissistically. It is no coincidence that a free speech jurisprudence lacking a good account of art's protection also lacks an appropriate framework within which to evaluate copyright.

I will suggest that the constitutional protection of art is best understood through a principle I will call the freedom of imagination. Under this freedom, no one can be penalized for imagining or for communicating what he imagines. Nor can a person be required to obtain permission from anyone in order to exercise his imagination. Copyright, I will argue, must answer to this freedom.

Part I of this Article describes copyright's conflicts with the First Amendment and shows how, notwithstanding these conflicts, courts refuse to subject copyright to independent First Amendment review. Part II addresses the most common explanations of copyright's First Amendment immunity. These explanations are, for the most part, standard fare in the literature. None of them, however, is remotely adequate.

Part III elaborates the freedom of imagination, defining, defending, and delimiting it. This freedom, I will suggest, not only best captures the First Amendment's protection of art, but also underlies a number of other paradigmatic First Amendment protections as well.

Part IV measures copyright against this freedom. I argue that copyright's core prohibition against piracy is consistent with the freedom of imagination, but that a good deal of copyright law outside this core is not. In particular, the freedom of imagination calls into question the enormous and growing set of prohibitions imposed by modern copyright law on so-called "derivative" works. I conclude that copyright's prohibition of unauthorized derivative works is unconstitutional, but that it could be saved if its regime of injunctions and damages were replaced by an action for profit allocation.

112 Yale L.J. 109 (2002)

One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. Instead of being a supreme parliament, able to do whatever it believed necessary to promote the nation's health, safety, welfare, or morals, Congress was crafted as a legislature of strictly enumerated powers. Every law passed by Congress must fall within one of these discrete powers, or be "necessary and proper" to the execution of such a power.

In the decades after the New Deal, however, it seemed as if almost nothing was beyond the purview of the federal government. Nearly any federal law could be upheld as an exercise of the commerce power; whatever civil rights measures fell outside its scope were justified by Section 5 of the Fourteenth Amendment. Indeed, in over fifty years, the Supreme Court struck down only one federal law as exceeding Congress's ostensibly limited constitutional authority.

This changed, of course, with three cases starting in the mid-1990s: United States v. Lopez, City of Boerne v. Flores, and United States v. Morrison. For the first time in twenty-five years, the Supreme Court actually struck down laws as exceeding Congress's commerce and Reconstruction powers. The Court even set forth guidelines for determining whether statutes are authorized by the Commerce Clause. As a result of this constitutional upheaval, many academics began to scour the Constitution, looking for alternate fonts of congressional authority to replace the now truncated commerce and Reconstruction powers.

Perhaps the most ingenious suggestion is that proposed by Professor Beth Stephens. Building upon an amicus brief filed in Morrison by certain "International Law Scholars and Human Rights Experts," she argues that a little-known constitutional provision, the Offenses Clause, could serve to authorize not only the laws struck down in Lopez, Boerne, and Morrison, but also legislation affecting almost all spheres of domestic activity. The Clause empowers Congress to "define and punish . . . Offences against the Law of Nations." Professor Stephens claims that this provision empowers Congress to enact civil and criminal legislation in any area upon which international law touches. Given the broad sweep of contemporary international law, this approach would turn the Offenses Clause into a Commerce Clause for the twenty-first century. It would bring virtually every aspect of society, including those traditionally left to state regulation, under congressional authority.

This Note takes the opposite point of view, arguing that the Offenses Clause is a modest grant of authority, insufficient to support laws such as the Gun-Free School Zones Act and the Violence Against Women Act (VAWA), or to undermine American federalism. The Clause affirms, rather than undermines, the balance of state-federal relations that the Framers intended. I argue that it allows for the enactment of legislation touching upon only that fixed, discrete set of areas involving intercourse with foreign nations and their citizens--including navigation, trade, war, and diplomacy--that comprise what the Framers believed to be the immutable law of nations.

Part I of this Note explores the claims made by Professor Stephens and the International Law Scholars, setting forth their case for viewing the Offenses Clause as an important source of substantive authority for Congress. It also examines the consequences of this approach, outlining the wide range of areas traditionally reserved to the states that it would enable Congress to regulate. Part II refutes the primary assumption upon which this interpretation is based. First, I argue that the phrase "law of nations" as used in the Offenses Clause is a term of art that is not synonymous with international law. I demonstrate that it refers to principles in certain well-defined areas that govern interactions among foreign countries and foreign nationals. The term excludes wholly domestic conduct that does not have a direct effect on foreign nations or nationals. Because the law of nations is rooted in natural law, its substantive content was understood by the Framers as being immutable. While modern-day treaties and evolving international norms are important parts of international law, they cannot expand the scope of the law of nations.

Part III argues that even if courts abandon the true meaning of the phrase "law of nations" and insist on interpreting it in a modern light, the most faithful modern analogue of this concept is neither international law as a whole, nor customary international law, but jus cogens norms. Allowing for the enforcement of jus cogens norms under the Offenses Clause is less faithful to the provision's true meaning than the approach advocated in Part II. The concept of jus cogens, however, has many important similarities to the law of nations, and the range of recognized jus cogens norms is fairly narrow. Consequently, this interpretation of the Offenses Clause would be a legitimate compromise, retaining much of the Clause's original meaning while preventing it from being used to eliminate the boundary between state and federal authority. Part IV concludes.

The Offenses Clause has been virtually ignored throughout most of this nation's history and has yet to be thoroughly explored by the legal literature. In light of suggestions that Congress use the Clause as a replacement for its once-omnipotent commerce and Reconstruction powers, a thorough examination of the history and meaning of its central phrase--"the law of nations"--is necessary.