Free as in Speech Week


The First Amendment guarantees that the government cannot abridge the people's right to free speech. That protection made headlines in two cases this week, one copyright-related and another dealing with surveillance law.

In Golan v. Gonzales , the 10th Circuit held that a law re-copyrighting material that had fallen into the public domain implicated the First Amendment. While not striking down the law, it did remand the case back to the lower court to evaluate the effect of the copyright expansion on protected speech. The case was brought by tech law guru Lawrence Lessig, who has a happy writeup at his website . Another recent case in the 9th Circuit, Kahle v. Gonzales , held that a similar copyright expansion didn't raise First Amendment problems because it was within the “traditional contours” of copyright law (a standard set by a previous Supreme Court case Eldred v. Ashcroft, upholding yet another copyright expansion). The circuit split increases the likelihood that the Supreme Court will review the issue.

Meanwhile, a New York District Court has struck down a provision in the Patriot Act on First Amendment grounds. The Patriot Act authorized the FBI to issue National Security Letters (NSLs) demanding private information about individuals. These letters, unlike warrants, have no judicial supervision, and the recipient of the NSL is under a gag order never to discuss even the fact that they have received such a demand. The ACLU (here's their happy writeup ) filed suit in 2004 on behalf of one Internet company that had received such a letter, whose identity had to remain concealed thanks to the secrecy provision. In Doe v. Gonzales , the Southern District of New York held that the NSLs were an unconstitutional intrusion on free speech without allowing meaningful judicial review.

Thumbnail photo courtesy of roland .

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