The copyright scholars who signed the letter argue that PROTECT-IP is unconstitutional, that it jeapordizes the integrity of the Internet and America's standing as a force for free speech in the world.
The Supreme Court has made it abundantly clear that governmental action to suppress speech taken prior to "a prompt final judicial decision . . . in an adversary proceeding" that the speech is unlawful is a presumptively unconstitutional "prior restraint,"1 the "most serious and the least tolerable infringement on First Amendment rights,"2 permissible only in the narrowest range of circumstances. The Constitution "require[s] a court, before material is completely removed from circulation, . . . to make a final determination that material is [unlawful] after an adversary hearing."3And Speaking of the Inalienable Right to the Pursuit of Happiness . . . (via /.)
The Act fails this Constitutional test. It authorizes courts to take websites "out of circulation" - to make them unreachable by and invisible to Internet users in the United States and abroad -- immediately upon application by the Attorney General after an ex parte hearing. No provision is made for any review of a judge's ex parte determination, let alone for a "prompt and final judicial determination, after an adversary proceeding," that the website in question contains unlawful material. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.4
I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.