The words they own
Courts have recognized that copyright can abridge speech, but they have almost never actually imposed First Amendment limitations on copyright. In Eldred v. Ashcroft, the Supreme Court held that when “Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” In so holding, the Court strongly suggested that the idea/expression dichotomy and fair use doctrine are critical free speech safeguards within copyright law, that without them, copyright would run afoul of the First Amendment.
As I argue in Copyright’s Paradox, I think the Eldred decision is very poorly reasoned and perpetuates copyright’s anomalous treatment in First Amendment doctrine. After all, other legal regimes, including defamation, right to privacy, trademark, the right of publicity, and others, have built-in protections for speech, but courts have nevertheless constitutionalized them, imposing First Amendment constraints to make certain that they don’t unduly burden speech. First Amendment limits are especially warranted in copyright given that the idea/expression dichotomy and fair use doctrine are notoriously arbitrary and indeterminate. At the very least, the First Amendment should be applied to make sure that copyright’s internal free speech safeguards actually do their job.
That sounds right to me, for that effort has, in some cases, clearly failed. There’s a great discussion of some of these issues in a review by Bill Patry, the reigning Man of copyright, of Netanel’s book.