![]() ![]() ![]() The Supreme Court's "First Amendment Due Process" 8 jurisprudence has been a pragmatic, largely seat-of-the-pants, judgment about the real-world impact of various sorts of procedural rules, be they independent review, punitive damages, or what have you. In Part III, we ask whether this result - and Bose itself - makes sense. In light of this, giving copyright law a free ride not given other speech restrictions is wrong, and corrosive of people's respect for free speech generally. In Part II, we argue that nothing special about copyright cases justifies departing from the independent judgment rule. The doctrinal demands of Bose are quite clear. 7 Though the great majority of circuits have held, without considering free speech issues, that such determinations should be reviewed only for clear error, we believe these circuits are mistaken. Consumers Union compels independent review of "substantial similarity of expression" determinations. Or they might provide benchmarks, against which future courts can compare and contrast new fact patterns. They might create new subrules that clarify the meaning of the rules, both for the benefit of future courts and of future speakers. 6 As courts see more cases of a particular type, they can refine the line between protected speech (such as nonobscene art, innocent error, or copying of ideas) and unprotected speech (such as obscenity, punishable libel, or copying of expression). Judicial review is part of the "evolutionary process of common law adjudication" which "gives content" to legal rules. Courts must, Bose holds, police factfinders' decisions to protect against such mistakes.īeyond this, independent review is also supposed to help prevent future mistakes, by making the lines in free speech law clearer and more administrable. If a factfinder erroneously concludes that your book infringes someone else's book, the factfinder hasn't just made a legal mistake: It has made a mistake of constitutional magnitude - it has deprived you of your First Amendment right to write your own expression, even when based on another's idea. In theory - a theory accepted by the Supreme Court as a principle of constitutional law - such independent review prevents prejudiced or erroneous deprivation of constitutional rights by factfinders. Rather, courts must "conduct an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited." 4 Lower courts have properly accepted this principle for trial court review on motions for summary judgment and for judgment notwithstanding the verdict. Consumers Union, 3 appellate courts can't just turn over vague phrases such as "actual malice" or "incitement" or "expression, as opposed to idea" to factfinders, and then defer to the factfinders' conclusions about what constitutes libel or incitement or copyright infringement. One such safeguard is independent judicial review, by appellate courts after trial, by the trial court after trial, and by the trial court on summary judgment. ![]() Nonetheless, as the Court has time and again held, certain procedural safeguards must accompany even substantively valid speech restrictions. Because the law stimulates entry into the marketplace of ideas, and because the law prohibits only the use of others' expression, not their ideas or the facts they've uncovered, the Copyright Act does not violate the First Amendment. Of course, the Supreme Court has held that copyright law is a valid speech restriction. It doesn't limit itself to slavish copying, but prohibits people from creating entirely new works, so long as those works use - even if only in part - another's expression. It restricts what writers may write, what painters may paint, what composers may create. First Amendment Due Prcoess and Copyright LawĬopyright law restricts speech. Independent Appellate Review in Those Circuits That Already Do ItĬ. The Supreme Court's Views in Other AreasĤ. Lawyers' Use of Prior Cases as Benchmarksģ. Lower Courts' Use of Prior Cases as BenchmarksĢ. Is Trying to Refine the Idea/Expression Dichotomy Pointless?ġ. Copyright Law Furthers Free Speech Valuesī. Subject Matter of the Jeopardized SpeechĦ. Lawyers Should at Least Ask for Independent ReviewĤ. Applying These Principles to Summary Judgment and Motions for J.N.O.V.į. Appellate Review in Cases Won By DefendantsĮ. Why Independent Judgment Review Is Mandatedī. Freedom of Speech and Appellate and Summary Judgment Review in Copyright Cases
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