A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption based on history and the intentions of the Framers, but this explanation is unpersuasive on the historical facts.
There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine. Many scholars have noted this theory, but they have been harshly dismissive towards it. For example, Mark Lemley and Eugene Volokh view the property theory as so clearly wrong as to be a “non sequitur,” because it supposedly implies that Congress can declare anything to be property and thereby circumvent the First Amendment.
This Article aims to rehabilitate the property theory. Contrary to its critics, the property theory does not say that anything labeled “property” is exempt, but rather contains two internal limits. First, the government-created rules of the property system must be content and viewpoint neutral, though the private enforcement of those rules can be viewpoint motivated. Second, even within the context of private enforcement, there must still be some protection against excessive ownership power. Understanding the property theory, including its internal limits, then provides a powerful legal justification for the Court’s treatment of copyright law—one that is far better than what the Court has itself articulated.
Rehabilitating the Property Theory of Copyright's First Amendment Exemption,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol89/iss2/2