News: I wanted to thank Tom Goldstein at Scotus blog (the premier site for Supreme Court action) and Dan Slater at Wall Street Journal’s law blog for referencing my last post that suggests how the Supreme Court’s decision in the gun case (DC v. Heller) is helpful to speech technologies + the freedom of the press.
The basic pivot point that connects the 2nd Amendment and the Free Press Clause in the 1st Amendment is that they are the only 2 provisions in the Constitution in which the Framers sought to protect a right to a technology — the right to “keep and bear arms” in the 2nd amendment and the right to the freedom “of the press” (meaning the printing press). I’ve outlined the history of the Free Press clause in an article you can download here. My article shows that the Framers clearly intended the Free Press clause to be a limit on the Copyright Clause, specifically to prevent the government from directly regulating or restricting the technology of the printing press. Indeed, the history behind the Free Press clause is strikingly similar to the history behind the 2nd Amendment in terms of both the English abuses in restricting a technology (guns or the printing press) and the Framers’ subsequent ratification debate between Antifederalists and Federalists.
If the Supreme Court follows the same approach in interpreting the history and text of the Free Press Clause as it employed in the gun case, then the result is likely to be that Congress’s efforts to restrict speech technologies under copyright law would be unconstitutional.