Quote:
Originally Posted by rogue_librarian
They're both tenured professors at Duke and constitutional scholars. It's safe to assume they know what they're talking about. It's an interesting read, actually, if you like that sort of thing.
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Considering that their basic premise (as related by Giggleton, at least) runs counter to multiple rulings, and more or less ignores the fact that the Bill of Rights was essentially contemporaneous to the ratification of the original body of the Constitution, I don't buy it.
At a bare minimum -- and as Ginsburg noted in
Eldred v Ashcroft -- copyright protects a fairly specific arrangement of content, not the idea that is expressed. E.g. Malcolm Gladwell has a copyright on
The Tipping Point, but cannot stop anyone else from using and extending the basic concept of a statistical or cultural "tipping point." You might be blocked by a
civil action -- not government edict, mind you -- if you try to sell a "Star Trek" story without permission; however, anyone can (and, it seems, does
) write a story about people traveling through space faster than the speed of light, with aliens and talking computers.
You'd also have the question of a conflict between "freedom of expression" and "state secrets." Is the First Amendment protection so extensive that the government has no authority to classify any document it produces? If someone tells me "Valerie Plame is a spy for the CIA," is that a form of "free expression" that is protected by the First Amendment?
What about libel? Does the First Amendment also entitle me to libel someone, shout "fire" in a crowded theater with the intent of causing panic, threaten a fellow citizen with imminent death, or produce child pornography?
And, consider the language when the Constitution does explicitly overrule an earlier section: "The eighteenth article of amendment to the Constitution of the United States is hereby repealed." (Seems rather overt to me, but what do I know, I'm not a Con Law scholar.
) Clearly, the First Amendment made no such explicit instructions to eliminate the copyright clause; thus interpreting its intention or effect to do so is, well, a
bit of a stretch.
Let's face it, the First Amendment should be granted a great deal of latitude and power, but it is not absolute.