David Post, David Levine, and Mark Lemley and a group of more than 90 prominent IP law professors have signed a letter objecting to the far-reaching PROTECT-IP bill, introduced by Senators Leahy, Shumer, Grassley, Feinstein, Whitehouse, Graham, Kohl, Coons and Blumenthal. PROTECT-IP is your basic batshit insane Internet law that would establish a Great Firewall of America that entertainment executives could use to censor the American Internet; it would require PayPal and credit card companies to police the copyright practices of their users; and it would mandate more domain seizures on accusation of copyright infringement.
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."3
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