First Amendment States That Congress Essay

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It is reasonable to conclude, therefore, that Congress has enacted sufficient regulation on business communication. Given that businesses are comprised of individuals who are subject to First Amendment protection, for the government to treat business communication as distinct from personal communication, however noble the idea in spirit, creates a conflict that is not easily reconciled. If anything, reconciliation of this conflict will see a further reduction on the limits of corporate speech, which at present has more than enough regulation.

Sullivan (2010) notes that there are different views of the role of free speech in the Constitution. One view holds that free speech upholds political equality, the other that it upholds political liberty. The former view seeks for equality of speech outcomes, such that those with power should not suppress the speech of those without power. The latter view holds that all speech should be equal, and that the First Amendment does not allow for special regulation of speech just because the speaker has more wealth and power than his peers. The latter view is more consistent with the wording of the First Amendment, whereas the former relies on an interpretation of the spirit of the First Amendment. Introducing subjective interpretation to the First Amendment is not generally without the realm of reason -- I take the view that political liberty is the ultimate goal of the First Amendment.

A final First Amendment issue is with respect to music downloads. Some arguments contend that the chilling effect that liability penalties might have on protected speech (such as legal downloading) mean that such penalties violate the First Amendment (Snow, 2009). Seltzer (2010) argues that First Amendment protections that are part of fair use should supersede any subsequent acts, such as the Digital Millennium Copyright Act. This position is the most reasonable.

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The First Amendment has long been extended to include governmental action that would create such chilling effects, and with more than a decade of evidence before us it is clear that the DMCA does create significant chilling effects.

The idea that music should not be available for download without royalty is patently absurd. First, the owner of the music has the right to disseminate that music without restriction, regardless of whether there is any royalty involved. One cannot make a blanket statement like that without specifying the owner of the work and the disseminator of the work. Copyright laws also must be written in a way that they do not supersede the First Amendment. When an individual is doing the downloading, that individual should be protected on the "chilling effects" basis. It is difficult for an individual to distinguish between works subject to copyright, given the confusing patchwork of laws regarding what constitutes "fair use," and what content is specifically covered by copyright laws. At present, these individuals do not enjoy the benefit of First Amendment, but they should, because the First Amendment does not, as noted in the Citizen's United ruling, "permit laws that force speakers to retain an attorney or seek declaratory rulings before…" engaging in speech. These individuals should enjoy protections, however. As for what companies want to charge for the content that they make available over the Internet, that is their business and not at all within the realm of the First Amendment.

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