Online Piracy Bill Constitutionally Suspect, Leading First Amendment Scholar Laurence Tribe Says

December 13, 2011

by Jeremy Leaming

Renowned constitutional scholar Laurence H. Tribe is weighing in on the House’s consideration of the so-called Stop Online Piracy Act.

CNET’s Declan McCullagh reports that Tribe, the Carl M. Loeb University Professor at Harvard Law School, has detailed why SOPA is unconstitutional. McCullagh also notes that the measure, which the House Judiciary Committee is scheduled to consider on Dec. 15, is garnering opposition from companies, such as Facebook, Twitter, Mozilla, eBay, and Google. The Motion Picture Association, Bloomberg reports, “is mounting its own counterattack in support of the legislation, through White House visits and a national advertising campaign.”

The bill, in part, would allow the Department of Justice to seek court orders requiring Internet-service providers, search engines, among other entities, to block or stop doing business with non-U.S. websites allegedly linked to piracy.

In a 23-page legislative memorandum, Tribe explains the numerous reasons why the measure rests on wobbly constitutional ground.

For example, the bill’s “notice-and-termination procedure,” he writes “poses grave dangers to protected speech.”

Tribe continues:

This provision would give copyright owners the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice that the site is ‘dedicated to theft of U.S. property’ – even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt.

Tribe’s entire analysis of SOPA’s constitutionality is available here.

McCullagh says SOPA “represents the latest effort from the Motion Picture Association of America, the Recording Industry Association of American, and their allies to counter what their members view as rampant piracy on the Internet ….”

Near the end of his legal analysis, Tribe, citing the Supreme Court’s 1983 opinion in Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, writes that the “fact that SOPA’s purpose is the protection of intellectual property rights does not change the constitutional calculus. Benign motives do not shield legislation from First Amendment scrutiny, nor is ‘[i]llicit legislative intent … the sine qua non of a violation of the First Amendment.’ The Supreme Court has ‘long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment.’”

[image via Wikimedia Commons]