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O P E N L A W: Eldred v. Reno
Featured Argument: First Amendment -- Strict Scrutiny

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Below is an introduction to the First Amendment -- Strict Scrutiny portion of our argument in Eldred v. Reno. Once you have finished reading the introduction, please add to our argument, or tell us what is wrong with it, by contributing to our First Amendment -- Strict Scrutiny Brainstorming Session (login required - register here) or find out more about the topic through the materials referenced in our First Amendment -- Strict Scrutiny Bibliography.


By limiting access to speech, retroactive extension of the Copyright Clause affects a harm on the domain of public discourse, and thus triggers First Amendment analysis.

The First Amendment provides that:

Congress shall make no law . . . abridging the freedom of speech . . .
Article I, Section 8 of the United States Constitution also grants Congress the authority:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The First Amendment protects a wide variety of speech-related activities; it aims to foster an active dialogue, granting rights to speak, and to publish, creating a structure which encourages a vibrant "marketplace of ideas." The Copyright Clause impinges upon the rights granted by the First Amendment, as it empowers Congress to grant ownership over portions of this dialogue, restricting the ability of others to speak it.

The courts have traditionally applied a test of "strict scrutiny" to any law that impacts speech interests more than incidentally and our argument in this section is that the courts should apply strict scrutiny to the Sonny Bono Copyright Term Extension Act.

In order to satisfy strict scrutiny, a law must further an overriding government interest, be narrowly tailored to that interest and be neither vague nor substantially over or underinclusive. See e.g. McIntyre v. Ohio Elections Comm'n, ___ U.S. ___ (1995) (an example of the application of strict scrutiny).

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