The Internet Blacklist vs. The Constitution

Last week, two leading Constitutional scholars offered detailed analyses of the Internet blacklist bills now pending in Congress, the Stop Online Piracy Act (SOPA) and Protect-IP, or PIPA. Both scholars concluded that the proposed law could not pass muster under the U.S. Constitution. So you’d think that the new version of SOPA circulated this week would have resolved those concerns.

You’d think wrong. While the revised SOPA briefly mentions the First Amendment, the substantive text makes clear that’s just lip service.  Here’s a selection of fundamental flaws that remain in both SOPA and PIPA:

First, both bills would still result in the censoring of non-infringing speech.  That is because they allow for the blocking of entire websites – even though the site may contain a great deal of perfectly legal speech.  The Supreme Court has repeatedly affirmed, “broad prophylactic rules in the area of free expression are suspect  . . . Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” As Professor Laurence Tribe puts it, “The First Amendment requires that the government proceed with a scalpel – by prosecuting those who break the law – rather than with the sledgehammer approach of SOPA, which would silence speech across the board.” And if you think the government will at least be precise in choosing which sites to target (not that the Constitutional analysis turns on the government’s good intentions), recall the disgraceful treatment of some of the sites targeted by the government as part of “Operation In Our Sites.”

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