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The SOPA Consensus: It Sucks

Publication Date: 
December 23, 2011
Source: 
The Daily Beast - The Dish
Author: 
Andrew Sullivan

Professor Mark Lemley is briefly mentioned in the following Daily Beast article by Andrew Sullivan on the negative effects of the proposed Stop Online Piracy Act.

Erick Erickson, threatening a GOP Congresswoman over her support for the internet-breaking Stop Online Piracy Act, calls for a left-right coalition to stop the law:

This might mean some allies are taken out. It might mean we take out Marsha Blackburn on the right and Debbie Wasserman Schultz on the left. But sometimes a fight is that important. Killing SOPA is that important. Letting the Attorney General of the United States shut down the internet as he wants, whether it be Eric Holder or a future John Ashcroft, should scare the mess out of every American.

Emily Crockett makes the liberal case against SOPA. Joshua Kopstein slams Congress for its active refusal to learn even the basics of how the internet works. Mark Lemley, David S. Levine, and David G. Post believe the the bill is flatly unconstitutional:

The Supreme Court has made it abundantly clear that governmental action suppressing speech, if taken prior to an adversary proceeding and subsequent judicial determination that the speech in question is unlawful,[2] is a presumptively unconstitutional “prior restraint.” In other words, it is the “most serious and the least tolerable infringement on First Amendment rights,”[3] permissible only in the narrowest range of circumstances. The Constitution requires a court “to make a final determination” that the material in question is unlawful “after an adversary hearing before the material is completely removed from circulation.”[4]

The procedures outlined in both bills fail this fundamental constitutional test. Websites can be “completely removed from circulation”—rendered unreachable by, and invisible to, Internet users in the United States and abroad—immediately upon application by the government, without any reasonable opportunity for the owner or operator of the website in question to be heard or to present evidence on his or her own behalf. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.