First, you are incorrect about NY Times v. Sullivan; its standard for
First Amendment analysis in libel cases has been expanded beyond public
officials to include public figures of all kinds.
Second, although not expressly discussed, the Court implicitly seems to think that enforcement of copyright law by private actors creates state action. In both Harper & Row v. Nation Enterprises and Eldred v. Ashcroft, the court rejected the First Amendment defense on its merits (copyright does not violate the First Amendment because it has built-in limitations that accommodate First Amendment interests), NOT because of a lack of state action. [Of course, in the latter case the declaratory judgment aciton was against the Attorney General, in his capacity as the principal enforcer of CRIMINAL copyright law, but certainly the Court did not even hint that state action might be a problem in a different context. And although the former case involved the memoirs of former President Gerald Ford, the plaintiff was his publishers, a private party.]
An excellent discussion of the often-assumed but rarely expressly discussed state-action doctrine in the context of IP is found in John R. Thomas, Liberty and Property in Patent Law, 39 Houston L. Rev. 569 (2002), at 592-606.
With regard to the chilling effect, I agree that judges contribute to the problem by failing to adequately enforce the idea/expression dichotomy and the fair use doctrine. But their ability to do so is facilitated by the inherently vague and malleable nature of those doctrines. It is their inherently vague and malleable nature, combined with the risk-averse demands of publishers and other intermediaries, that I believe creates a chilling effect.
But of course, a "chilling effect" is virtually impossible to measure. How can one determine whether more speech would exist in a hypothetical world where we had different laws? You can't. So, we can disagree all we want, and it probably will have zero effect on the behavior of judges.
Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu
>>> lawlists[_at_]bodi.com 03/27/03 02:45PM >>> wrote:
>>>> lawlists[_at_]bodi.com 03/19/03 01:08PM >>> wrote:
> The first amendment is intended to put constraints on government
> action, not individuals. [snip] Thus, this "chilling effect", if it
is
> due to private, not government action, is beyond the scope of the
First
> Amendment.
> <<<<<
>
> But in NY Times v. Sullivan, the U.S. Supreme Court said that state
> libel law IS subject to the First Amendment.
Only to a very LIMITED extent. The Court did not want to see the courts used by individuals to impede political discourse. Thus, the exceptions carved out for PUBLIC officials. Thus, the libel rights were taken away from those who seek public office and such, not from the individual. I happen to disagree with the findings of the case, and as far as I know, the Court has never expanded its holding.
Even though the civil
> action is brought by a private plaintiff, the very existence of a
state
> law permitting such a lawsuit amounts to government action that is
> subject to First Amendment restraints.
Again, only in limited situations. Further, the First Amendment
specifies
some special rights of the press, which might account for the ruling,
at
least in part.
> The same principle should apply
> here. Granted, the Court's "state-action" jurisprudence is muddled,
to
> say the least; but the enforcement of private agreements through
> contract law appears to me to present a very different state-action
> problem than the existence of libel law (or copyright law), which
are
> applicable to everyone.
Very muddled indeed. And the currrent Court is unlikely to expand the doctrine in any case.
> Agreed; but it's not the chilling effect on lies that the NY Times
v.
> Sullivan doctrine is concerned with. It's the chilling effect on
> truthful speech, for fear of having to defend one's statements in
court,
> that the doctrine is concerned with. The cost of litigation itself
is
> enough to chill speech, even if one if convinced one is telling the
> truth.
Thus the reason that public officials cannot use defamation law
without
showing actual malice. But for private individuals on both sides, the
First
Amendment does not provide much protection against the use of
defamation
laws.
> But only if those doctrines are clearly and consistently applied so
> that one can predict in advance that one is not likely to be sued, or
if
> sued, is likely to prevail. As currently applied, both doctrines are
> vague and suspect to a great deal of judicial manipulation; which
> therefore can lead to a chilling effect.
I think that you go too far. The threat of a lawsuit is always
present, and
if such a threat were considered "chilling" by the courts, you would
see a
much different legal landscape. Legal procedures are SUPPOSED to week
out
the frivolous cases. The fact that they rarely do has more to say
about our
wimpy judges than it does about the Constitution. More policing of
lawsuits
by both judges and the legal profession would solve the problem
without
relying on arguments about "chilling".
-Bodi Received on Fri Apr 04 2003 - 03:07:05 GMT
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