I've been debating my post about Rihanna and the TSA manual with Eugene Volokh, renowned UCLA Law School professor and progenitor of the Volokh Conspiracy, a great law blog. Eugene agreed that we could clean up the correspondence and post it. Here's where it stands. I'll obviously have to respond soon. Further comments from Eugene and others are also welcome.
Eugene Volokh: As to the copyright analogy, I’m not sure it quite works: While the Court has essentially recognized a copyright exception from First Amendment protection, it has stressed (see Harper & Row v. Nation Enterprises) that the exception is constitutional because it leaves people free to convey facts and ideas (as opposed to copyrighted expression), and to make fair uses even of expression. The objection to publication of the TSA document is precisely that the publication reveals dangerous facts (more a subject for a crime-facilitating speech exception, if there is to be such an exception, see http://www.law.ucla.edu/volokh/facilitating.pdf) and that the law should suppress the distribution of such facts.
Of course, there are arguments that even publication of certain facts should be punishable; I discuss them in the Stanford article I linked to above. But I just don’t think the copyright analogy is particularly apt here. Or am I missing something?
Stewart Baker: I see your point, and of course the security problem is in the end the facts that are disclosed. However, there is a difference between disclosing facts from a 30-page document and releasing the entire document. Especially in a wired world where publishers have little time and energy to devote to disclosure, requiring that publishers limit themselves to paraphrasing or excerpting protected documents would result in far less disclosure. Retail disclosure takes more effort than wholesale disclosure. Security is also harmed more when the entire document is made available for mining and processing by hostile interests. The use of an excerpt or paraphrase would thus be less likely to harm national security.
Thus it seems to me that there is a remaining interest in preventing wholesale reproduction of protected documents. And if there's justice in the world, it wouldn't take very much of a security interest to match the social value of protecting Snoop Dogg's lyrics.
Eugene Volokh: Hmm – but is any of the value of the document in the supposedly creative expression of the facts, or is all the value (and the harm) in the facts? If the very objection is that revealing the document will convey dangerous facts, then it seems to me that we’re pretty far from a copyright argument, which is that republishing a song will infringe on the author’s creative expression and that the facts are still freely conveyable.
Stewart Baker: But the presumption of creative expression is wholly artificial in a world that grants copyright to shopping lists. The USG voluntarily surrendered its own copyright to serve other interests -- such as allowing free transmission of data that Americans have already paid for with their taxes. Why can't the USG simply reclaim that copyright for classified and sensitive documents, where the interest in free transmission is nonexistent?
Now if the interest in free transmission of the information is nonexistent, that could be an argument for a new First Amendment exception. I just don’t think it’s much of an argument for an exception by analogy to copyright law. (I’m not sure, by the way, that the interest in free transmission is nonexistent, because publishing the information does provide law-abiding citizens with an understanding of how the government operates; that’s one thing I discuss in my Crime-Facilitating Speech piece. Perhaps the harmfulness of the publication still so much exceeds the value that the publication should be punishable. But I don’t think it’s accurate to say that there’s no interest in free transmission of the information.)
I'm proposing an exception to that exception, on the theory that the first exception is based on a Congressional (not judicial) "free transmission" justification that is patently missing when the very government that encourages transmission of most of its documents has followed a reasonable process to identify documents that should not be freely transmitted. Having created the exception, I think Congress should be able to decide how far the exception extends.
The only question is whether the exception to the exception is reasonable, and I submit that it should be a pretty low bar to get over. If not, the courts will find themselves extending the first exception willy-nilly. They'll find themselves asking why state and local governments should be able to claim copyright if there's a constitutionally compelled exception from copyright for the
For that matter, it raises the question whether state employees, such as law professors at state institutions, are also constitutionally compelled to surrender copyright for works produced while on the payroll. ;-)
Eugene: I might be missing the argument here. Here’s how Harper & Row justified the constitutionality of copyright, despite its being a speech restriction: Copyright law is constitutional because “copyright’s idea/expression dichotomy ‘strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.’ No author may copyright his ideas or the facts he narrates.... In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.... Moreover, freedom of thought and expression ‘includes both the right to speak freely and the right to refrain from speaking at all. We do not suggest this right not to speak would sanction abuse of the copyright owner's monopoly as an instrument to suppress facts.... In view of the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.”
As I read this, the copyright law – even if Congress repeals sect. 105 – can’t be used to suppress the communication of facts. Yet as I understand it, the argument for using copyright law to stop the publication of government instruction manuals is not at all that “copyright itself [would] be the engine of free expression,” providing an “economic incentive to create and disseminate ideas.” Rather, it’s precisely that copyright law would be an effective “instrument to suppress facts,” though of course facts that are dangerous in the wrong hands. That’s why I don’t see the copyright analogy as helpful here. If the argument is to be made that publishing certain facts is so dangerous and so valueless that such publication should be suppressed, then that’s the way the argument should be made; but I don’t think it should get any extra force from the copyright analogy. What am I missing here?
Update: This dialogue is continued at some length in the comments.