Constitution Daily

Smart conversation from the National Constitution Center

Say What? "A scalpel rather than a sledgehammer"

January 18, 2012 by Holly Munson


Editor’s Note:  For the past 200-plus years, We, the People have had a lot to say about the Constitution. In each installment of “Say What?” we offer a quick quote—be it wise, quirky, or otherwise memorable—from past or present conversation related to our favorite founding document.

In this installment, we look at SOPA—the Stop Online Piracy Act—currently being debated in the House.


"To their credit, SOPA’s sponsors recognize the importance of the constitutional issues raised by the statute they propose. The bill includes language stating '[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.' But proclaiming the bill to be constitutional does not make it so – any more than reminding everyone of a proposed law’s good intentions renders that law immune to First Amendment scrutiny. At the same time, the proviso may have the unintended effect of rendering large swaths of the bill inoperative. For it is difficult to understand how the provisions discussed above would operate except as impermissible prior restraints. The proviso creates confusion and underscores the need to go back to the drawing board and craft a new measure that works as a scalpel rather than a sledgehammer to address the governmental interests that SOPA purports to advance."


Laurence H. Tribe, University Professor of Constitutional Law at Harvard University, in an open memo to Congress


Thanks to the buzz about Wikipedia's unprecedented blackout slated for Wednesday, more people have begun to weigh in on the anti-online-piracy bills being debated in Congress: the Stop Online Piracy Act (SOPA) in the House and the Protect IP Act (PIPA) in the Senate. Tribe is just one of many who have voiced serious concerns about the constitutionality of these two bills.

Article I, Section 8 of the Constitution empowers the Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." So Congress has a constitutionally valid reason to pursue legislation that addresses the issue of online piracy and copyright infringement. However, people from across the political spectrum have criticized several provisions of the proposed bills for providing sweeping unconstitutional powers to the government.

Among the most criticized aspects of the bill is the provision allowing the government to block entire domain names of sites that are accused of violating copyright; it also encourages service providers or sites to self-censor their content.

Critics argue these provisions are unconstitutional on several counts: first, that it would deprive citizens of the due process of law (they wouldn't get to defend themselves in court before content is taken down), and second, that blocking violating websites is equivalent to prior restraint. In addition, the vagueness of the provisions may lead to abuse.

Critics of the bill have also argued that the bills would halt tech innovation and even "break the Internet."

Holly Munson is Assistant Editor of Constitution Daily, the blog of the National Constitution Center.

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