Talking about Jimi Hendrix, the Star-Spangled Banner, and Free Speech at the Supreme Court
This week the Supreme Court heard arguments in Golan v. Holder, a case about whether the government can grant copyright protection to books, music, and movies that were previously in the public domain. Works in the public domain can be used by anyone without restriction, and provide inspiration and material for new works and performances.
The case is a challenge to a law passed in 1994 called the Uruguay Round Agreements Act, which granted copyright protection to millions of foreign works that had previously passed into the public domain in the U.S. Many classics are included: symphonies by Shostakovich and Stravinsky; books by Tolkien, Orwell, Woolf, and C.S. Lewis; films by Fellini and Hitchcock; and artwork by Picasso, including Guernica.
The lawsuit was brought by a coalition of orchestra conductors, teachers, and film archivists, and the ACLU filed a friend-of-the-court brief. The ACLU supports copyright in general, as it can provide an important incentive to create speech — but copyright laws, like all others, are subject to the First Amendment. And a vital element of copyrights is that they eventually expire, so that older works can be used as inspiration for the new.
In defending the law, the government argued that the First Amendment doesn't apply to copyright laws except in limited circumstances not present in this case — essentially, that Congress can pass copyright laws without taking freedom of speech into consideration. According to the government, even if the First Amendment did apply, those who use speech first created by others are only entitled to limited First Amendment protections.
Our brief argues that the First Amendment doesn't permit Congress to take away the public's right to use speech that has previously been in the public domain whenever it wants to do so. Speech based on words first used by others — like political signs or t-shirts — are entitled to full First Amendment protection.
During the argument, Chief Justice John Roberts discussed in our brief, asking, "What about Jimi Hendrix, right? He has a distinctive rendition of the national anthem, and assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?"
Chief Justice Roberts is exactly right. Throughout time, well-known artists, writers, and thinkers have created something new by relying on works in the public domain. Whether it's Jimi Hendrix or the Royal Shakespeare Company, that speech also deserves to be protected — and Congress shouldn't be allowed to take away our rights to create that speech.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
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Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
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Free Speech
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