Ned Snow, ‘Barring Immoral Speech in Patent and Copyright’

ABSTRACT
In the past three years, the Supreme Court has twice ruled that Congress’s moral bars to trademark protection violate the First Amendment. Those rulings raise a simple question in other areas of intellectual property. Does the First Amendment preclude Congress from denying patent or copyright protection based on a moral reason? Congress, for instance, might deny patent protection for inventions directed toward the consumption of marijuana. Inventors would accordingly choose not to disclose knowledge about those inventions to the public, and the denial would chill their speech. Similarly, Congress would chill speech if it denied copyright protection for moral reasons. A copyright bar to statues of the Confederacy, for instance, would deter artists from speaking such content. Hence, through patent and copyright, Congress might seek to influence speech in accord with its moral viewpoint. This Article considers whether that use of intellectual property would violate the First Amendment.

The Article concludes that moral denials in patent and copyright may be constitutionally permissible in certain instances. On the patent side, Congress’s choices about which invention to patent may plausibly be construed as government speech, suggesting the absence of any First Amendment violation. Yet even if those choices are not government speech, they represent Congress’s attempt to regulate conduct relating to the embodiments of the inventions – not the knowledge about the inventions. That suggests that the incidental effect on an inventor’s speech is permissible.

Copyright law is a different matter. The copyright system appears to comprise a limited public forum, which implies that moral denials of copyright protection must be viewpoint neutral to pass First Amendment muster. In other words, moral denials of copyright protection may be permissible but only if the reason for denial is not related to the expression’s message or effects responsive to that message. This principle severely limits Congress’s power. Thus, for moral denials of patent protection, the First Amendment affords Congress broad discretion whereas for moral denials of copyright protection, it affords Congress very limited discretion.

Snow, Ned, Barring Immoral Speech in Patent and Copyright (June 30, 2021). SMU Law Review, volume 74, no 1, 2021.

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