Why SOPA is unconstitutional

The Electronic Frontier Foundation's Corynne McSherry looks at the revised version of the Stop Online Piracy Act that is going to markup today, and finds that it does not address the substantive First Amendment issues raised by scholars who've weighed in since its introduction.

First, both bills would still result in the censoring of non-infringing speech. That is because they allow for the blocking of entire websites – even though the site may contain a great deal of perfectly legal speech. The Supreme Court has repeatedly affirmed, “broad prophylactic rules in the area of free expression are suspect . . . Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” As Professor Laurence Tribe puts it, “The First Amendment requires that the government proceed with a scalpel – by prosecuting those who break the law – rather than with the sledgehammer approach of SOPA, which would silence speech across the board.” And if you think the government will at least be precise in choosing which sites to target (not that the Constitutional analysis turns on the government’s good intentions), recall the disgraceful treatment of some of the sites targeted by the government as part of “Operation In Our Sites.”

Second, the bills allow the government to obtain blocking orders without an adversary proceeding, which means that the right of U.S. citizens to receive information from abroad would be denied, without any real test of the merits of the infringement claim. To be clear, this process is unconstitutional even though the originators of the speech are outside of the United States (though, in some cases, the originators could be U.S. residents, e.g., folks posting comments on a foreign site’s forums), because the First Amendment protects our right to receive information as well as send it. Tribe points to a chilling parallel in a Supreme Court case which held that the Post Office could not keep a list of U.S. citizens receiving “communist political propaganda” (which, of course, intimidated those citizens from doing so) even though the “propagandists” were located abroad.

This is your last chance to call your lawmaker before the markup begins. Act now and save the Internet!

The Internet Blacklist vs. The Constitution


  1. Of course UMG perfectly demonstrates as it goes along censoring anybody on youtube with the DMCA who talks about the megaupload song, that nobody should implement such legislation in the first place, and it should absolutely not be the power of UMG or any other of the cartel members to wield it.

  2. Ask yourselves: Qui Bono?

    The music industry and the movie industry are mere icing on the cake as far as the economy goes.

    Apple alone has enough cash in its reserves to buy all the record studios and movie studios and it wouldn’t make a dent in the size of the pile. And it really isn’t alone.

    If Gates or Buffet or any the tech billionaires decides that its getting in the way of getting the content that that billionaire wants, he can just buy the companies outright and turn this into an investment and get rid of the need for the RIAA or MPAA.

    So who benefits from the **AAs century and a half of of repeated failure at stopping the tide?

    The **AAs have exactly zero victories. NONE WHAT SO EVER! (Google for it and you’ll see that they are failures from beginning to end.)

    Who wants to slow progress to such an extent?

    1. cui bono.  It’s dative.   You just asked “who (is) good?” I think.

      By the way, the answer to “who wants to slow progress?” is “whoever wants censorship more than progress”.  It’s not about the music industry. It’s about a thinly veiled excuse to install great-firewall-of-China-style censorship in the US for later political abuse, and to hell with the first amendment.

      Any congressman or senator who votes for this legislation is voting for treason. Occupy DNS next, anyone?

  3. I just made the call and got all tongue tied. I sounded like Sara Palin. Oh well, hopefully all they really need to hear is “SOPA me no likey, and I vote in your district”.

    1. I called about SOPA.  I’d never called my representative before and I’d never heard anyone else do it either, so I didn’t have a mental model for how that interaction would go.  I planned to just hang up and start over if I got messed up, and I was nervous, but it was fine.  I said I was calling to register my opposition, asked if I was talking to the right person to pass on that message (asking for and getting permission to proceed), gave three short points of supporting rationale, then finished with a vocal fry so they’d know I was done with my mini-speech.  She asked my name, I told them that and what part of town I lived in, we thanked each other and that was that.

      I would have felt like crap if I hadn’t done it.  Glad I did.

  4. It’s even worse than what you say. Corporate vigilantes can bypass the government altogether. Not enough attention is being paid to the elimination of liability for corporate self help.

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