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ABSTRACT
Expression eligible for copyright protection should be presumptively treated as speech for First Amendment purposes. Both copyright and the First Amendment share the goal of fostering the creation and dissemination of information. Copyright's authorship requirement furnishes the key link between the doctrines. This Essay examines where the two areas of law align and conflict in offering or denying protection. Using copyright law as a guide for the First Amendment offers three benefits. First, many free speech problems can be clarified when examined through copyright's lens. Second, this approach makes the seeming puzzle of non-human speakers understandable. Finally, it can help end technological exceptionalism in First Amendment doctrine.
INTRODUCTION
Copyright equals speech.1
This formula is plainly controversial, but it is also correct, as this Essay will show. It reverses the usual scholarly flow: normally, copyright looks to the First Amendment for guidance.2 Here, this Essay argues the First Amendment has much to learn from copyright. This Essay takes the position that if expression can be copyrighted, and if it does not fall into one of the categories of material that the Supreme Court has designated as beyond the First Amendment pale, then that expression is speech that enjoys First Amendment protection.
This contention engages the hotly contested debate over what constitutes "speech"-meaning expression that receives protection against government regulation. Under Chief Justice John Roberts, the Supreme Court has increasingly extended First Amendment protections-to violent video games,3 videos showing cruelty to animals,4 emotionally distressing demonstrations near funerals of soldiers killed in combat,5 and information about physicians' prescribing habits.6 While some scholars differ,7 many see the Roberts Court as broadening the ambit of the First Amendment and reducing the potential scope of government regulation.8
Yet, the debate over speech continues to percolate, with decisions finding that search results9 and off-label drug marketing10 constitute protected speech, and decisions holding that conversations between physicians and patients about guns11 or gay conversion therapy12 are not. There are contests over protection for algorithmically generated information,13 revenge porn,14 emotionally injurious speech,15 unflattering information,16 political expenditures by corporations,17 network neutrality,18 and more. The hard question, as Toni Massaro frames it, is what speech is "above-the-line" (cognizable for First Amendment protection), and what is not?19 Copyright offers at least a partial answer....