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THE “STOP ONLINE PIRACY ACT” (SOPA) VIOLATES THE FIRST AMENDMENT

Laurence H. Tribe

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SUMMARY

H.R. 3261, the Stop Online Piracy Act or “SOPA,” violates the First Amendment, for several reasons: • The notice-and-termination procedure of Section 103(a) runs afoul of the “prior restraint” doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining p arties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S. property” – even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. The Supreme Court has made clear that “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression [and] only a procedure requiring a judicial determination suffices to impose a valid final restraint.”

Freedman v. Maryland

, 380 U.S. 51, 58 (1965). “[P]rior rest raints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

Nebraska Press Assn. v. Stuart

, 427 U.S. 539, 559 (1976). • Section 103(a) is also constitutionally infirm because it contains a vague and sweeping definition of a website “dedicated to theft of U.S. property.” A site would quali fy under the statutory definition if it “enables or facilitates” infringement by a third party, whether or not such

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