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Jawboning in Plain Sight: The Unconstitutional Censorship Tolerated by the DMCA

posted by hubie on Wednesday November 20, @04:53AM   Printer-friendly
from the but-moooom!-everyone's-doing-it dept.

DannyB writes:

Jawboning In Plain Sight: The Unconstitutional Censorship Tolerated By The DMCA

For better or worse, jawboning has been a hot topic recently, and it's unlikely that interest will fade any time soon. Jawboning, in broad strokes, is when the government pressures a third party to make that third party chill the speech of another instead of going after the speech directly. Because the First Amendment says that the government cannot go after speech directly, this approach can at first seem to be the "one easy trick" for the government to try to affect the speech it wants to affect so that it could get away with it constitutionally. But as the Supreme Court reminded earlier this year in NRA v. Vullo, it's not actually constitutional to try this sort of end-run around the First Amendment.

[....] there should be concern about Section 512 of the Digital Millennium Copyright Act and how it operates to force intermediaries to act against users and their speech, whether they would want to or not, and whether the targeted speech is wrongful or not.

[....] "Why now?" After all, the DMCA has been working its unconstitutional way for a quarter of a century, and we've been tolerating it. But tolerating the intolerable does not make it tolerable.

Yep! Just pretend it's a copyright issue and fraudulently file a DMCA, under plenty of perjury, to silence what you don't like.

Original Submission

 
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  • (Score: 2) by HiThere on Wednesday November 20, @02:20PM (2 children)

    by HiThere (866) on Wednesday November 20, @02:20PM (#1382588) Journal

    IIUC, a business does not have the right of free speech. Just the people. Of course, a corporation is a "legal person", but that's only suppose to be true in a limited sense. (E.g. corporations aren't tried for negligent homicide, though occasionally people who work for them are.)

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  • (Score: 2) by janrinok on Wednesday November 20, @03:50PM

    by janrinok (52) Subscriber Badge on Wednesday November 20, @03:50PM (#1382596) Journal

    I forgot the /s - my apologies.

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  • (Score: 2) by jelizondo on Wednesday November 20, @06:27PM

    by jelizondo (653) Subscriber Badge on Wednesday November 20, @06:27PM (#1382612) Journal

    Well, according to the Supreme Court, corporations have a right to free speech, at least when it is expressed as contributions to political candidates and parties.

    See Citizens United v. FEC [wikipedia.org]