Speaking Through Others' Voices: Authorship, Originality, and Free Speech
128 Pages Posted: 8 Jan 2004
The article examines a category of speech acts that I call speech selection judgments. These acts involve the appropriation or selection of speech originally created elsewhere (by another) and the secondary deployment of that material in another context by a person or entity different than the original creator. The practice is essentially citational, in the broad sense that one repeats the words, speech, message, or meaning of another, and yet claims governance and, often, ownership over the repetitive use.
The article explores the variety of forms such speech selection judgments take, the Supreme Court's varied and inconsistent treatment of such acts as speech protected by the First Amendment, and the theoretical justifications for viewing such acts as First Amendment speech. I conclude that the Supreme Court's decisions are often based on conceptions of First Amendment speech that sweep too broadly and threaten to include a limitless variety of acts within the First Amendment simply because they can be perceived to communicate a message.
In light of this, the article concludes that speech selection acts should be treated as protected First Amendment speech acts only when (1) a person makes a speech selection for purposes of expression; (2) the selected speech is adopted as an expression of the speech selector's own ideas or opinions; and (3) the selected expression is transformed in meaning or significance by the act of selection.
Keywords: Free speech,authorship,originality,republication,intellectual property
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