Golan v. Holder Decision
In a 6-2 vote, the Supreme Court upheld the constitutionality of a law that will restore copyright protection to foreign works that have previously been in the public domain in the U.S. The law was part of a global trade agreement requiring countries to protect works created in other member states unless the works’ copyright term has expired in either the country where protection is claimed or the country of origin. Previously, the only foreign authors eligible for Copyright Act protection were those whose countries granted reciprocal rights to American authors and whose works were printed in the United States. All other foreign works were in the public domain.

The plaintiffs in Golan v. Holder argued that the Copyright Clause in the Constitution does not grant Congress the authority to remove works from the public domain and resurrect copyright. They also argued that the act violates the First Amendment by imposing copyright restrictions on works that previously could be copied, performed, and re-mixed freely.

The majority disagreed. Justice Ginsburg, writing for the majority, insisted that “Nothing in the historical record, subsequent congressional practice, or this Court’s jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain.” Justice Ginsburg claimed the First Amendment concerns in the case would be served by the fair-use doctrine.

In response to Justice Breyer’s dissenting opinion that the law brings about higher prices and seriously restricts dissemination without providing any additional incentive for the production of new material, the majority claimed that each individual copyright law need not, in itself, stimulate new creations and that it is regulations  in the aggregate that do so.

The stakes were high for the musicians, educators, performers, publishers, archivists, and distributors who brought Golan to court. Some have gone to great effort and expense to curate, restore and distribute works that were in the public domain, including symphonies by Stravinsky, Prokofiev and Shostakovich; books by C.S. Lewis, Virginia Woolf and H.G. Wells; films by Federico Fellini, Alfred Hitchcock and Jean Renoir; and artwork by M.C. Escher and Picasso. The ability to perform, share and build upon these works now requires a licensing fee, which in some cases is prohibitive.

The Copyright Clause attempts to balance free speech interests with the need of intellectual property creators to profit from their labor. In affirming the law, the Court is not only creating the possibility that millions of works will be eliminated from the public domain, but also giving a green light to Congress to do so again in the future.

Stolen Valor
The Supreme Court will soon decide the Constitutionality of the 2006 Stolen Valor Act, which was designed to punish false claims of U.S. military honors. The test case is U.S. v. Alvarez, wherein California politician Xavier Alvarez has been charged with repeatedly claiming to have won the Congressional Medal of Honor.

During oral arguments, Alvarez’s attorney did not dispute that his client lied. Rather, the defense (and a number of free speech advocates) warned that the law cleared the way for governments to criminalize any number of falsehoods, with subjects ranging from marital fidelity to possession of a high school diploma. The government, however, has argued that false speech enjoys no protection under the First Amendment, except for a “breathing space” reserved for matters of political contention, in addition to familiar protections for parody and satire.

That “breathing space” may satisfy the Court, which has scoffed at the notion of government playing the role of “Ministry of Truth.” The Court may choose to sidestep the issue of criminalizing false speech entirely, and uphold the Stolen Valor Act’s protection of military honors as a kind of government defense of trademark or intellectual property. The more narrow the ruling, the lower the chance to interpret the law as granting government ability to punish citizens for “little white lies,” and hence the better for free speech.