If you’re reading this, you’ve almost certainly at least heard about SOPA/PIPA. If you haven’t or just want to learn more, Reddit has an excellent primer that’s well worth reading. Today, a lot of people are engaging in a form of protest over the possible passage of the bills, a blackout from the likes of Google, Wikipedia, xkcd, and my favorite from the Oatmeal. Friend-of-the-Blog, Daniel Solis has a great line on his site today: Is the best way to fight piracy to destroy your own boats?
Let me add my voice to the chorus: SOPA and PIPA are bad pieces of legislation. I don’t merely mean that they are wrong-headed (which they are). People can have reasonable disagreements over the proper place to draw the line between protection and usage of intellectual property. More bluntly, they’re poorly conceived and poorly written. They are an inefficient method of dealing with an otherwise legitimate problem, summed up rather nicely in Daniel’s koan.
But I’ll let you in on a little secret: I’m not that worried about them, and here’s why….
If these bills pass in anything close to their present form, they’ll almost certainly be struck down by the courts. The reason can be summed up in a series of two word phrases: strict scrutiny, prior restraint, and due process. (NOTE: These links probably won’t work today.)
Strict scrutiny is a legal standard a court applies when assessing the constitutionality of a particular law. It is the highest standard a court can apply. It is reserved for laws infringing on core constitutional rights, such as the Freedom of Speech. To meet this high standard, a law much possess the following traits:
1) It must deal with a compelling government interest.
2) It must be narrowly tailored to protect that interest.
3) It must be the least restrictive way of doing so.
I don’t think SOPA/PIPA as constructed meet any of those criteria. You could probably make a case for #1 if you couch it in terms of the benefits to society by protecting IP generally. You would be hard-pressed to make a case for #2 and #3 though. We already have laws in effect to deal with piracy. Generally, these laws are remedial in nature, i.e., dealing with piracy after it occurs. SOPA/PIPA are generally prospective, i.e., looking to prevent piracy before it occurs. A narrowly tailored and least restrictive approach would . A remedial approach is always going to be more narrowly tailored and less restrictive than a prospective. Moreover, by operating in this way, creating a method of extinguishing speech before it is disseminated, SOPA/PIPA also act as a form of prior restraint, which is impermissible. Finally, delegating the policing of infringement to private parties constitutes a violation of process, which requires a party be given notice and an opportunity to be heard before their rights can be curtailed. These are just superficial explanations. In reality, the constitutional defects in these bills are far more extensive.
I am not suggesting that people should just keep quiet, let the bills pass, and allow the courts to do the heavy lifting. There’s no such thing as a slam dunk when it comes to litigation. And speaking out against the bills and occasionally reminding our elected officials who they serve is a worthwhile ancillary benefit. I’m just saying this: Regardless of the outcome of the legislative battle, I’m not going to lose any sleep over SOPA and PIPA because I maintain a healthy level of faith in the judicial system (Citizens United notwithstanding).
UPDATE: Some have commented on my closing bon mot regarding the Citizens United case. Friend-of-the-Blog, Gareth M. Skarka, tweeted:
@JustinDJacobson Not sure that adding “Citizens United nonwithstanding” helps argument, since it proves judicial branch is bought, too.
— Gareth M. Skarka (@gmskarka) January 18, 2012
That’s a reasonable concern, so I thought I should address it here. If anything, Citizens United bolsters my point. Yes, I disagree with the opinion. However, it is a much closer legal question than the SOPA/PIPA examination. It was grounded in a line of existing cases dealing with corporate speech. More to the point, it represents a pretty bold, even overreaching defense of free speech and further demonstrates the very high hurdle presented by the strict scrutiny standard. It would be difficult to reconcile that kind of full-throated support of free speech and any reversal of a lower court striking down SOPA/PIPA. I’m not naive. If you believe that the judicial system serves only those with the deepest pockets, it’s easy to see how that sort of result would come to pass. But I’m also not a complete cynic, and I think that the courts generally adhere to the law.