First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics: 

1) Steven Douglas Smith (University of San Diego School of Law), Why is Government Speech Problematic? The Unnecessary Problem, the Unnoticed Problem, and the Big Problem, forthcoming in Denver University Law Review. The abstract states:

This article, prepared for a conference on government speech, does not prescribe solutions for the various constitutional problems posed by government speech, but rather attempts in a more diagnostic way to figure out why the issue has come to seem so problematic. The article suggests that some of the difficulties derive from unrealistic and unnecessary commitments to governmental neutrality. Other difficulties reflect a less appreciated problem - what I call the problem of “institutional capture.” Most fundamentally, however, controversies about speech are merely reflections of deeper disagreements about the nature and functions of government. It it seems unlikely, therefore, that we will be able to find satisfactory solutions by focusing on controversies on the level of speech: that is because, ultimately, it is not speech that is the problem, but rather government.

2) Abner S. Greene (Fordham University - School of Law), (Mis) Attribution, forthcoming in Denver University Law Review. The abstract states:

In this essay, I evaluate three issues of attribution and mis-attribution that arise in the so-called area of “government speech.” First, I explore when an individual might have a constitutional claim for mis-attribution by the state. Second, I discuss the citizen’s interest in proper attribution by the government when it is speaking. Third, I consider the government’s interest in avoiding expression being improperly attributed to it. This concern arises less often than is commonly assumed; what many scholars (and governments) claim to be a state interest in avoiding attribution or endorsement is in fact a state interest in not providing a platform for certain types of private speech. As such, the matter cannot be resolved according to the categories of “public forum” or “government speech,” and instead we must decide how much content-based decision-making is appropriate for the state when creating speech opportunities that fall into neither of these more doctrinally understandable forms.

3) Stephen McIntyre (Duke University School of Law), Trying to Agree on Three Articles of Law: The Idea/Expression Dichotomy in Chinese Copyright Law , forthcoming in Cybaris™, An Intellectual Property Law Review (2010). The abstract states:

The idea/expression dichotomy, which holds that copyright protection extends only to expression, but not to ideas, is internationally recognized as a basic principle of copyright law. Yet despite the doctrine’s fundamental importance, China has not codified it in its general copyright statute. This legislative failure threatens to undermine the public-oriented goals of copyright and presents a dilemma to Chinese courts, which are not authorized to make or develop doctrine through recognition of judicial precedent.

This Article provides the first in-depth study in English of the idea/expression dichotomy in Chinese copyright law. It demonstrates that, even though the doctrine is not codified, it is widely acknowledged among Chinese academics and regularly applied in Chinese courts. The doctrine has faced linguistic, cultural, and conceptual challenges in China, and early court decisions left much to be desired. Nonetheless, an analysis of recent judicial opinions reveals that modern courts understand the idea/expression dichotomy and apply it in a reasonably coherent and defensible manner. Their exposition of the doctrine is largely, although not entirely, consistent with its underlying purpose of promoting free speech and safeguarding the public domain.

The courts’ relative success in filling this statutory hole suggests that Chinese judges play an underappreciated, but crucial, lawmaking function. This finding in turn raises intriguing questions as to the authority and function of China’s judicial system generally.

4) Patrick M. Garry (University of South Dakota - School of Law), Raising the Question of Whether Out-of-State Political Contributions May Affect a Small State’s Political Autonomy: A Case Study of the South Dakota Voter Referendum on Abortion , 55 South Dakota Law Review --- (2010). The abstract states:

The federalism structure inherent in the American political system presumes not only that states occupy a separate level of authority from that of the federal government, but also that each state retains its own independence and autonomy from every other state. Each state, for instance, must be free to enact and enforce its own set of laws. This ability, however, may be jeopardized by current patterns of political fundraising and campaign expenditures. This article examines how a state holding a voter referendum on a particular issue of national importance may be significantly affected by out-of-state interests - particularly if those out-of-state interests contribute a substantial majority of the political campaign expenditures relating to that issue. Sparsely populated states such as South Dakota are particularly vulnerable to influxes of out-of-state campaign money. Although the First Amendment may preclude any regulations in this respect, the effects of out-of-state political fundraising and campaign expenditures could be such so as to jeopardize a small state’s electoral autonomy.

5) Jennifer A. Chandler (University of Ottawa - Faculty of Law - Common Law Section), Technological Self-Help and Equality in Cyberspace, 55 McGill Law Journal --- ( 2010). The abstract states:

New technologies challenge the law in many ways, including by extending a person’s capacity both to harm others and to defend him or herself against harm from others. These changes require the law to decide whether we have legal rights to be free of those harms, and whether we may react against those harms extra-judicially through some form of self-help (e.g. self-defense or defense of third parties) or whether we must resort to legal mechanisms only. These questions have been challenging to answer in the cyberspace context, where new interests and new harms have emerged.

The legal limits on permissible self-defense have historically been a function of necessity and proportionality to the threat. However, this article argues that the case law and historical commentary show that equality between individuals is an important policy issue that underlies the limits on self-defense. The use of technologies in self-defense brings the question of equality to the fore since technologies may sometimes neutralize an inequality in strength between an attacker and a defender. A legal approach that would limit resort to technological tools in self-defense would ratify and preserve that inequality.

However, the relationship between technology and human equality is complex, and this article proposes an analytical structure for understanding it. The objective is to understand which technologies promote equality while imposing the least social costs when used in self-defense.

The article proposes principles (including explicit consideration of the effects on equality) for setting limits on technological self-help, and illustrates their use by applying them to several forms of cyberspace counter-strikes against hackers, phishers, spammers and peer-to-peer networks.

6) Nathan Murphy (University of Connecticut), Context, Not Content: Medium-Based Press Clause Restrictions on Government Speech in the Internet Age, 7 University of Denver Sports & Entertainment Law Journal 26 (2009). The abstract states:

By all accounts, the Obama campaign was remarkably successful at harnessing internet resources like YouTube, Facebook and Twitter to secure a convincing electoral victory last November. And President Obama has made it clear that he will continue to use the internet to bypass traditional media outlets and take his message directly to the public. Many commentators have applauded this renewed commitment to transparency as a welcome change, but others have voiced concerns about the government’s version of events becoming the dominant narrative.

These mixed reactions are symptomatic of the confused state of the law, and of legal scholarship, on the issue of government communication. On one hand, communicating with the public is an essential function of government. But government speech that becomes too dominant can begin to resemble unconstitutional propaganda. Government expression thus presents two interpretational challenges. First, drawing a line between persuasion and propaganda can be difficult. Second, even if a particular form of government speech seems impermissible, articulating a constitutional reason for prohibiting it is not obvious. The new technologies of the “information age” have put these problems into particular relief.

This paper proposes an answer to both of these questions. First, the Constitution established the press as a check on government, so when government speech interferes with the press’s checking function, that speech is unconstitutional. The Supreme Court’s recent decision in Pleasant Grove City, Utah, v. Summum apparently exempts government speech from First Amendment analysis altogether. However, this paper - the first to examine Summum’s Press Clause implications - explains why future courts may be willing to consider Press Clause limitations to the new expansive Summum liberties when government expression impedes the checking function.

But even those writers who believe that the Press Clause places limits on government speech have not been able to clearly articulate when those limitations should come into effect. This paper contends for the first time that Press Clause restrictions should not be based on the content expressed, but on the physical medium used. The advent of the internet is eroding the power of the traditional media, while simultaneously consolidating the government’s power as a speaker. Moreover, the online news sources that are supplanting traditional media outlets are too fragmented to provide a coherent check on the government’s version of events. The internet is thus the first mass communication medium whose use by the government raises substantial constitutional concerns.

Our current administration is not engaged in impermissible government speech. However, the day may come when it crosses the line. Accordingly, courts faced with Press Clause challenges to government speech should distinguish Summum and consider limiting that speech, especially if is communicated via the internet.

7) Monique B. Lampke,Why the Fair Use Defense of Free Speech or Parody Under the Anticybersquatting Consumer Protection Act Needs Judicial Review by the United States Supreme Court. The abstract states:

This Article suggests the time is ripe for the United States Supreme Court to interpret the fair use defense of free speech or parody under the Anticybersquatting Consumer Protection Act (“ACPA”). The ACPA was enacted in 1999 to protect consumers from “cybersquatting,” or when a non-trademark holder registers a domain name of a trademark and attempts to: (1) sell the name either to the holder for a ransom or to the highest bidder; or (2) divert or confuse consumers. Although published decisions from the circuit courts interpreting the ACPA continue to explore the marriage of trademark protection with the First Amendment’s protections of domain names and websites as free speech, a conflicting criteria has emerged regarding when an alleged cybersquatter can successfully assert the fair use defense. For example, the Tenth Circuit’s standard is that it must be immediately apparent to anyone visiting a parodic website that it was not the trademark owner’s website. However, the Fourth Circuit’s criteria is whether the domain name at issue conveys two simultaneous, yet contradictory, messages: that it is the original and that it is not the original and is instead a parody. Such inconsistent criteria has the potential to render an alleged cybersquatter victorious in one circuit, yet liable in another circuit.

This Article’s circuit-by-circuit analysis exposes the vast inconsistencies between the circuit courts’ decisions and argues that the United States Supreme Court should, by granting a petition for a writ of certiorari, articulate the standard for the ACPA’s fair use defense based upon free speech or parody.

8) Kalyani Ramnath, Rumour Has It: Silence, Violence and Too Much Speech . The abstract states:

The objective of this paper is to investigate rumour as a medium for the violence of the state and its role in fashioning the ‘event’, the ‘everyday’ and the legends that are enmeshed in the two. This paper draws upon existing work treating the language of rumour as ‘a perlocutionary force’ that ties seemingly disparate events together. Nevertheless it cannot be tethered to one author, which may make it a site for contestations (Veena Das, 2007). In this region of doubt and anonymity, does the state lurk?

Perhaps the state resides in these 'unfinished stories' of violence and the law, told by people who are 'translators'. These translations give and take away from the form that the event assumes at any point, given that people speak from different and multiple positions. The attempt is perhaps to piece together fragments, convey their pain / suffering. The state is both implicated and vindicated in this process of translation, in these words without an author and in this language whose meaning is uncertain.

The paper uses people’s tellings of such events as a starting point, using the example of a spate of attack on places of worship in Karnataka, India in 2008-2009. How does the subject, living in the 'site of devastation', engage with the uncertainty of the rumour? What does this imply for democratic practice, if a culture of incompleteness is to be the ‘norm’?

9) Philip Cook (University of Leicester)and Conrad Heilmann (London School of Economics), Two Types of Self-Censorship: Public and Private. The abstract states:

We propose and defend a distinction between two types of self-censorship: public and private. In public self-censorship, individuals restrain their expressive attitudes in response to public censors. In private self-censorship, individuals do so in the absence of public censorship. We argue for this distinction by introducing a general model which allows us to identify, describe, and compare a wide range of censorship regimes. The model explicates the interaction between censors and censees and yields the distinction between two types of self-censorship. In public self-censorship, the censee aligns her expression of attitudes according to the public censor. In private self-censorship, the roles of censor and censee are fulfilled by the same agent. The distinction has repercussions for normative analysis: principles of free speech can only be invoked in cases of public self-censorship.

10) Joseph P. Bauer (Notre Dame Law School), Copyright and the First Amendment: Comrades, Combatants or Uneasy Allies? , forthcoming in Washington and Lee Law Review. The abstract states:

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform and perform that work for a extended period of time. The First Amendment, on the other hand, proclaims that Congress “shall make no law ... abridging the freedom of speech or of the press,” thus at least nominally indicating that limitations on the reproduction and distribution of works – including the works of others – are forbidden.

Courts, including the U.S. Supreme Court in Eldred v. Ashcroft, have stated that these two regimes can be reconciled in large part by some mechanisms internal to the copyright system, and in particular the fair use doctrine and the denial of copyright protection to facts and ideas. Yet, the rejection of these two defenses in a number of prominent copyright infringement actions, and the resulting unavailability of unconstrained access to important materials, illustrates that, on occasion, broader application of First Amendment protection is necessary.

This Essay first explores the history, goals and values of these two regimes. It concludes that not only has First Amendment protection been denied in important cases; this denial has likely had a chilling effect in many other instances, in which socially valuable uses of copyrighted materials have been voluntarily forsaken for fear of litigation. The Essay then offers a test for greater unconstrained access to otherwise protected works. First Amendment interests should prevail when there is a strong public interest in allowing the unauthorized use of protectable expression; when the speaker has a compelling need to use the expression itself, ie, when paraphrasing, describing or summarizing the work is inadequate to meet the speaker’s needs; and when there is no reasonable alternative available to obtain consent to that use.

11) D. Robert MacDougall, Rawls and the Refusal of Medical Treatment to Children, 35 Journal of Medicine and Philosophy 130 (2010).The abstract states:

That Jehovah's Witnesses cannot refuse life-saving blood transfusions on behalf of their children has acquired the status of virtual “consensus” among bioethicists. However strong the consensus may be on this matter, this article explores whether this view can be plausibly defended on liberal principles by examining it in light of one particularly well worked-out liberal political theory, that of Rawls. It concludes that because of the extremely high priority Rawls attributes to “freedom of conscience,” and the implication from the original position that parents must act paternalistically toward their children as their protectors, Jehovah's Witnesses cannot legitimately be barred from making decisions on behalf of their children, even when the consequences of such decisions are serious and irremediable.

12) Stephanie Farrior (Vermont Law School),  Human Rights Advocacy on Gender Issues: Challenges and Opportunities, 1 Journal of Human Rights Practice 83 (2009). The abstract states:

Recent years have seen notable progress on issues of gender and human rights in standard-setting and to some extent application of those standards through international and domestic legislation and jurisprudence, and in institutional programming and development. Some international and regional human rights bodies now go beyond just including ‘women’ in a list of ‘vulnerable’ groups, and have begun to incorporate women's experiences and perspectives into recommendations for structural changes needed to bring about full enjoyment of human rights by women and girls. In addition, recent years have seen the human rights of lesbian, gay, bisexual, transgender, and intersex people being taken up beyond the first human rights bodies that addressed them, and developments have taken place in standard-setting. Despite this progress, many challenges remain. Violence against women continues at a staggering rate. Gender-based discrimination persists in the workplace, housing, education, disaster relief, health care, and countless other areas. Access to justice continues to be hindered by a range of obstacles. Religion, tradition, and culture continue to be used as a shield for violating women's rights. Same-sex conduct is still criminalized in scores of countries, and it carries the death penalty in seven states. The traditional human rights law paradigm, with its focus on the state, may be obsolete in dealing with human rights abuses by such diverse non-state actors as powerful militias and global corporations. This article highlights just a few opportunities and challenges to come for international human rights advocacy on gender issues.

13) Adham A. Hashish (Alexandria University Faculty of Law), Islamic Ijtihad: The Key to Islamic Democracy Bridging and Balancing Political Islam and Intellectual Islam , 9 Richmond Journal of Global Law & Business --- (2010). The abstract states:

Religion is a timeless culture in the Middle East. This article interprets Islam not only as part of the problem of democracy in the Middle East, but rather part of the solution. It proposes a formula of checks and balances that has its origins in Islamic history.

Much has transpired since Muslims were left to govern their own affairs after the death of prophet Mohamed. Muslims' nostalgia is particularly focused on two famous eras in Muslim history, the Rightly Guided Caliphate Era and the Golden Age of Islamic Civilization. The first era is famous for the dominant atmosphere of justice and represents the rise of the first democratic political institution in Muslim history, the historic Caliphate. The second is famous for its advancements in humanities, science, and technology, which represent the rise of advanced academic institutions which include the influential four schools of law (madhhabs) that continue to shape the Islamic legal system today.

This article focuses on the role of Ijtihad in building institutions of Islamic democracy. Rather than addressing the importance of Ijtihad in general or its importance in academia, this article attempts to emphasize Ijtihad's importance as a main tool to empower the intellectual Islam (Intell-Islam) stream to check the political Islam (Polit-Islam) stream and balance it within a framework of Islamic governance.
That helps explaining the dilemma that faces the Arab world right now manifested in the checks and balances between the two wings of Islam, Intellectual Islam, which is ruled by reason, and Political Islam, which is ruled by passion.

Ijtihad represents the untold story behind the big picture of any proposal for Islamic democracy. Both Polit-Islam, through its main tool Jihad, and Intell-Islam, through its main tool Ijtihad, represent [*64] the heart and mind of Islamic democracy. Polls show only the strength of the Polit-Islam stream through measuring civil society's passion in the short term. However, it is the Intell-Islam stream that shapes civil society's culture in the long term, through its structuring of Ijtihad institutions.

The argument will be addressed in three parts in this article. Part I focuses on understanding Islam as a culture of pursuing justice. Early development of Islamic law mirrors culture as a phenomenon in which pursuing ideals went side by side with appropriating realities. Ijtihad played the major role in achieving such development. Part II deals with the institutional role that Ijtihad played in the early development of Islamic law. This includes the rise and fall of Ijtihad institutions, which applies to both madhhabs (as organizations) and Usul (as norms). Part III deals with the institutional role that Ijtihad could play in contemporary development of Islamic democracy. Following a model of early Islamic governance, I propose a contemporary model that is based on reviving Ijtihad institutions. These institutions represent an Intell-Islam stream that could balance the dominating Polit-Islam stream in shaping Islamic culture and ultimately Islamic governance.

14) Darren O'Donovan and Siobhan Mullally (University College Cork), The Legal Framework Regulating the Wearing or Display of Religious Symbols in Educational Institutions, The abstract states:

This paper examines the current legal framework in Ireland regulating the display or wearing of religious symbols in educational institutions. The paper was submitted to the Consultation on Intercultural Education, undertaken by the Ministry for Integration 2008-9. Ireland's current legal framework is examined in the light of recent developments in European and International human rights law.

15) Yuksel Sezgin (City University of New York - Department of Government), Beyond Sacred and Secular: Politics of Religion in Israel and Turkey (Book Review) , 63 The Middle East Journal 162 (Winter 2009). The abstract states:

How can one account for the resurgence of religiously-inspired political movements and parties throughout the globe? Or more specifically, how can we explain the rising power of religious parties like Turkey’s Justice and Development Party (JDP) and Israel’s Shas Party in the Middle East? Who are the people running these parties, ex-clergy, ideologues or lay pragmatists? More importantly, who are the supporters of these parties: swing voters recruited through clientelist networks or zealot loyalists?...

16) Dimitris Georgarakos (University of Frankfurt) and Sven Fuerth (Goethe University Frankfurt), Household Repayment Behavior: The Role of Social Capital, Institutional, Political, and Religious Beliefs. The abstract states:

We examine the influence of social capital, beliefs about corruption, public perceptions about the justice system, religiosity, and political views, on household repayment behavior after taking into account household-specific and legal or institutional factors that existing literature has identified as important. We find that households living in regions with more dense beliefs about corruption in the country or in authorities that have an immediate power of execution (police) are more likely to delay or skip scheduled payments. We also show that arrears are more common in regions where more people find it difficult to win a dispute with a bank, political views are more left-wing, and people are less religious. Furthermore, we show that high stocks of social capital induce good repayment behavior, net of the influence of informal borrowing, of beliefs about corruption and the legal environment, of religiosity, of economic growth, and of social stigma considerations related to the observed repayment behavior of other households in the region. This remaining effect can be consistent with the fact that households in high social capital communities have strong ethical considerations and face a higher hazard of loosing their standing in the group and access to the positive externalities of social capital.

17) Paul M. Secunda (Marquette University - Law School), District Court Amicus Brief of Law Professors in Support of Defendants, Associated Oregon Industries v. Avakian, No. 3:09-CV-1494-MO . The abstract states:

Amici curiae law professors filed this brief to urge the United States District Court for the District of Oregon to deny Plaintiffs' summary judgment motion. That motion argues that SB 519, Oregon state legislation that prohibits employers from firing workers who refuse to attend captive audience meetings about the employer's political, religious, or union views, is invalid as preempted by the National Labor Relations Act (NLRA) and inconsistent with the First Amendment of the federal Constitution.

This brief argues that a finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship. Traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption. There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers.

Employers in Oregon are still able to communicate their views about unionization with their employees as Section 8(c) of the NLRA contemplates, but are forbidden from engaging in conduct that forces these same employees to listen to such presentations on pain of losing their jobs or other benefits of employment. The right to speech simply does not include the right to compel someone to listen. Not under the First Amendment and certainly not under statutory law. In short, amici law professors maintain that the Court should find that Oregon had the inherent power to enact SB 519 and such promulgation is consistent with the reach and purposes of the NLRA and with principles of federalism.

18) Aziz Z. Huq (University of Chicago Law School), Modeling Terrorist Radicalization, forthcoming in 
Duke Journal of Law and Social Change. The abstract states:

Recent high-profile terrorism arrests and litigation in New York, Colorado, and Detroit have brought public attention to the question of how the government should respond to the possibility of domestic-origin terrorism linked to al Qaeda. This symposium essay identifies and discussing one emerging approach in the United States and Europe which attends to the process of terrorist “radicalization.” States on both sides of the Atlantic are investing increasingly in developing an epistemology of terrorist violence. The results have implications for how policing resources are allocated, whether privacy rights are respected, and how religious liberty may be exercised. This essay traces the development of state discourses on “radicalization” in the United States and the United Kingdom. It argues that understanding this new “radicalization” discourse entails attention to interactions between nations and between the federal government and states as well as to the political economy of counter-terrorism.

19) Amy Pomerantz Nickerson , Comment- Coercive Discovery and the First Amendment: Towards a Heightened Discoverability Standard,57 UCLA L. Rev. 841 (2010). The abstract states:

This Comment addresses whether the First Amendment restricts a litigant’s or the government’s ability to compel disclosure of information about protected First Amendment activities. In evaluating whether such speech-related information may be subpoenaed, courts have struggled to balance a speaker’s right to anonymous or confidential speech with the evidentiary needs of prosecutors or plaintiffs.
The fractured jurisprudence addressing this issue contains a multitude of discoverability standards that vary dramatically in the level of protection afforded to speakers. In some circumstances, such as where a party subpoenas confidential membership or donor lists, courts have refused to compel disclosure absent a showing of a compelling interest and need for the information. In other situations, for instance subpoenas seeking confidential statements, the requesting party need only demonstrate mere relevance. In still other cases, such as where the discovery request seeks to identify an anonymous blogger or a journalist’s anonymous source, courts balance the competing interests through application of multifactor tests. This Comment suggests that notwithstanding such doctrinal compartmentalization, an important commonality exists between different types of cases involving of compelled disclosures: The risk that coercive discovery techniques, such as subpoenas and search warrants, will chill freedom of expression.
This Comment argues that given the inadequacy of current discovery laws and constitutional criminal procedure standards as a safeguard of free speech interests, the First Amendment should operate as an additional restriction on coercive investigatory powers. It thus makes the case for subjecting coercive discovery requests for information about speech-protected activities to a uniform, heightened discoverability standard. Specifically, it proposes a five-part framework under which courts should analyze whether certain speech-related information can be coercively discovered.

20) David S. Olson (Boston College Law School), First Amendment Based Copyright Misuse. The abstract states:

We are at a crossroads with respect to the under-developed equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or - if judges accept the proposal of this Article – courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control other’s speech.

The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new works by preventing subsequent creators from using copyrighted work to make their own, new speech. Courts have long recognized this inherent tension, and have also recognized that the conflict should sometimes be decided in favor of allowing a subsequent speaker the right to make unauthorized use of others’ copyrighted works. Accordingly, courts created, and Congress codified, the fair use defense to copyright infringement, which allows unauthorized use of copyrighted works under certain circumstances that encourage speech and creation of transformative works. The problem with fair use, however, is that the informational uncertainties and transaction costs of litigating the defense make the fair use right unavailable to many as a practical matter. Subsequent creators are left open to intimidation by copyright holders threatening infringement suits. By decoupling the copyright misuse defense from its basis in antitrust principles and basing it in First Amendment speech principles, the legal protections for fair use shift from theoretical rights to practical rights for many. Copyright misuse has two deterrent features that will allow fair use as a practical right. First, a copyright holder’s misuse of its copyrights against anyone can be used to prove the defense of misuse. Second, once misuse is found, the copyright owner loses its ability to enforce its copyright against everyone, at least until the misuse is cured. Thus, by defining as copyright misuse the unjustified chilling of speech that some copyright holders perpetrate, the misuse defense will encourage important speech rights that are currently under-protected.

21) Ian C. Bartrum(Drake Law School), Commentary, Same-Sex Marriage in the Heartland: The Case for Legislative Minimalism in Crafting Religious Exemptions, 108 Mich. L. Rev. First Impressions 8 (2009). 
 
JFB