Vol 7 No 1 - Roger Williams University School of Law

Publishers Inc. v. Nation Enterprises and of this court inUnited Video, Inc. v. FCC, stand as insuperable bars toplaintiffs’ first amendment theory. In Harper & Row theCourt held that a magazine’s advance publication ofexcerpts from the memoirs of former President GeraldFord infringed the copyright thereon. In doing so theCourt explained how the regime of copyright itselfrespects and adequately safeguards the freedom of speechprotected by the First Amendment . . . . The [F]irst[A]mendment objection of the magazine was misplaced“[i]n view of the First Amendment protections alreadyembodied in the Copyright Act’s distinction betweencopyrightable expression and uncopyrightable facts andideas, and the latitude for scholarship and commenttraditionally afforded by fair use.” In keeping with thisapproach, we held in United Video that copyrights arecategorically immune from challenges under the FirstAmendment. There, certain cable companies petitionedfor review of an FCC regulation providing that thesupplier of a syndicated television program could agree tothe program being broadcast exclusively by a singlestation in a local broadcast area. We rejected the firstamendment aspect of their challenge as follows:In the present case, the petitioners desire to makecommercial use of the copyrighted works of others. Thereis no first amendment right to do so. Although there issome tension between the Constitution’s [C]opyright[C]lause and the first amendment, the familiaridea/expression dichotomy of copyright law, under whichideas are free but their particular expression can becopyrighted, has always been held to give adequateprotection to free expression.159The plaintiffs argued that those authorities were restrictedsolely to the narrow case where a litigant demands a right to useotherwise legitimately copyrighted material, which was distinctfrom the litigation at hand that sought to challenge theconstitutional validity of the Copyright Act itself. The Court159. Id. at 375-76 (citations omitted).