Why the First Amendment Cannot Dictate Copyright Policy

50 Pages Posted: 20 Oct 2003

See all articles by David McGowan

David McGowan

University of San Diego School of Law


This article argues that the First Amendment does not supply a premise a court can use to limit congressional power to give authors rights to exclude others from their works. It advances five reasons for this conclusion. First, the First Amendment deals with disputes between the state and authors, or between the targets of speech and authors. It does not provide premises for dealing with disputes between authors. Second, First Amendment doctrine takes an ex ante perspective regarding incentives to produce expression. Third, arguments for using the First Amendment to limit the length or scope of copyright make various empirical predictions that may be right, wrong, or completely backwards. Fourth, free riding is not a First Amendment value. Fifth, the Court has used unusually deferential language when referring to Congress's copyright power. This language is especially notable in comparison to the Court's recent assertions that it alone has the power to define the scope of constitutional rights. The Court may choose to derive from historical practice some broad limitations on Congress's power, but the notion that the First Amendment compels particular policies cannot be supported.

Keywords: First Amendment, copyright

Suggested Citation

McGowan, David, Why the First Amendment Cannot Dictate Copyright Policy. Available at SSRN: https://ssrn.com/abstract=460280 or http://dx.doi.org/10.2139/ssrn.460280

David McGowan (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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