How Copyright’s First Amendment Exemption Enables the Powerful to Silence the Powerless
Published online by Cambridge University Press: 08 August 2025
Chapter 4 identifies one of the most troubling developments in copyright law over the past generation: the surprising and remarkable story of how its exemption from First Amendment scrutiny has enabled powerful interests to cynically weaponize copyright as a forceful, state-backed vehicle of censorship to silence critics and suppress dissent. Thus, copyright has a growing free speech problem – one that threatens to undermine both the vitality of our regime governing the use of creative works and our most basic free speech rights. After surveying the growing use of copyright law to stifle legitimate discourse on issues of racism, religious discrimination, reproductive rights, gay rights, corruption, torture, and police brutality, the chapter examines the conditions empowering such lawfare and considers how we might better ensure that copyright law stops serving as a transparent censorial proxy enabling the powerful to silence the powerless and, instead, returns its focus to vindicating the appropriate economic interests of rightsholders.
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