Parties are increasingly raising the First Amendment as a potential limit on the scope of copyright rights. However, courts have traditionally found that copyright law already incorporates First Amendment interests, as it precludes protection of ideas and allows for the "fair use" of expression. This article addresses the issue of whether there needs to be additional First Amendment restraints. The author focuses on the broader principles of the First Amendment, and whether copyright law fully incorporates those principles. The author then discusses two recent cases, Worldwide Church of God v. Philadelphia Church of God and Los Angeles Times v. Free Republic, which illustrate how First Amendment interests can be overlooked. Thus, the author recommends that there should be additional First Amendment restraints on copyright law to ensure that courts, as they keep one eye on protecting property rights, keep the other on protecting speech.
Alan E. Garfield,
The First Amendment as a Check on Copyright Rights,
23 Hastings Comm. & Ent. L.J. 587
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol23/iss3/4