Leahy Marks Free Speech Week With Keynote Speech Before the Media Institute

By:  Patrick Leahy
Date: Oct. 25, 2012
Location: Washington, DC

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), a leading voice on First Amendment issues, today delivered the keynote address to the First Amendment Advisory Council of the Media Institute to celebrate Free Speech Week. Leahy is the leading author of the 2010 SPEECH Act, a law to protect American authors from foreign libel lawsuits. He has been critical of foreign governments that restrict free speech on the Internet. Co-founder and co-chair of the Congressional Internet Caucus, Leahy has long fought for the protection of privacy rights and freedom of speech on the Internet, and he has advocated for copyright protections for innovators and artists on the Internet, as a means to encourage the exchange of free speech and ideas.]

Remarks of Chairman Patrick Leahy

Media Institute Celebration of Free Speech Week

Free Speech and the Internet

October 25, 2012

Thank you for that kind introduction and the opportunity to be here with you this morning. The Media Institute has done a great job over the last decade to make Free Speech Week a national event that brings needed attention to a founding principle of our Nation.

The right to free speech enshrined in our First Amendment is necessary both as a personal and a public right. It enables a dynamic debate of issues and perspectives that not only empowers the speaker, but benefits our society so that we can weigh competing viewpoints. This allows the most persuasive arguments and ideas to win on their merits.

The Internet has enhanced free speech by dramatically improving the speed and efficiency with which we can exchange ideas and make our voices heard. The Internet has transformed the delivery of speech in a manner as revolutionary as the printing press. A free and open Internet enables ideas and expression to move seamlessly throughout the world without governments prioritizing some views over others.

America should be a beacon for free speech throughout the world, and our system is rightly held up as a model for others. We have long recognized, however, that the First Amendment cannot be used as a shield for certain illegal activity. For instance, our courts have held that it is illegal to engage in fraud and the First Amendment cannot be used to justify it.

Our Constitution is the source of another example -- the protection of intellectual property. The only place in the Constitution as initially ratified that specifically mentions a "right" is in the intellectual property clause, which authorizes Congress to provide authors with the exclusive right to their works.

Copyright protection is not inconsistent with free speech. It actively advances the goals of the First Amendment by supplying the economic incentive to create and disseminate ideas. Justice O'Connor famously wrote that copyright law is the very "engine of free expression."

The opposite is also true. Allowing unfettered theft of copyrighted works, whether online or in the physical world, is a disincentive to speech. This is most often thought of as a problem for the music or movie industries. But the news organizations represented here also know that if their work cannot be protected and monetized, they have to cut reporters and editors, and our democracy suffers from fewer sources of quality news reporting and ideas as a result.

I will continue to promote the Internet but also want to protect the rights of creators in their works, so that there is more expression available for all of us to consider and consume. This protection for copyrighted works must exist in both the physical and the digital worlds.

Just as fraud is illegal whether it occurs on the street or online, so is the theft of someone's work, whether it is a song, a movie, software, or a news report. The Internet needs to be free, but not lawless. There is no First Amendment right to steal.

Too many countries still restrict free speech on the Internet. We must remember that this is a problem not merely because the restriction applies to the Internet. Rather, the real problem is the restriction of speech. In this country, we must be free to express ourselves in the public square and on the Internet. That is how we can have a society that has access to all perspectives and a voting public that has the opportunity to make informed decisions.

In Congress, we have taken important steps recently to protect American authors against more restrictive speech laws overseas. Two years ago, we passed and the President signed the SPEECH Act. This was bipartisan legislation I authored with Senator Jeff Sessions to ensure that American courts do not enforce foreign libel judgments from countries whose free speech protections are lower than what our Constitution affords.

Foreign plaintiffs were bringing libel lawsuits against American writers and publishers in countries with plaintiff-friendly libel laws. This "libel tourism" was resulting in a race to the bottom, and posed the real risk that Americans would defer to the country with the most chilling and restrictive free speech standards in determining what they can write or publish. The SPEECH Act now deters that practice, and I thank all of you who worked with me on that legislation.

Free Speech Week is an important opportunity for us all to remember that we must remain vigilant against efforts to curb speech and to restrict the press's ability to gather and report the news. Today, our nation faces new threats to our security both at home and abroad. In the face of these challenges, Congress is grappling with how best to maintain the critical balance between the public's "right to know" and the Government's need to keep some information secret.

Those who break the law should be punished. But, the zeal to respond to leaks should not come at the expense of our First Amendment rights. As Congress considers new tools to address unauthorized disclosures of classified information, I will work hard to ensure that we do so in a manner that protects the American people's "right to know" and our fundamental freedoms.

The right to free speech ensures that all arguments can be presented, and all voices and perspectives heard. Coupled with a free press, it enables vigorous debate and an exchange of ideas that shape our political process and inform our decisions. And as we approach an important national election, it is worth remembering that the very legitimacy of any democratically-elected government rests on the strength of the right to vote and have your vote counted. Efforts to suppress votes by the creation of new barriers to voting, ushered in by the Supreme Court's decision three years ago in Crawford v. Marion County, fall heaviest on senior citizens, African-Americans, Latinos, veterans, college students and the poor. They are an affront to our heritage and harken back to discriminatory practices such as poll taxes and literacy tests.

I believe that our Nation has grown stronger as more people have been able to exercise their right to vote. I see it as part of the steady progress that Dr. Martin Luther King, Jr. described when he spoke about "the arc of the moral universe" bending "toward justice." Each generation of Americans since the Nation's founding has worked to bend that arc a little further toward justice, seeking to fulfill the Constitution's stated goal of "a more perfect Union." For the first time in generations that arc is at risk of being turned away from our Constitution's core values and away from justice.

The work of the American Constitution did not stop 225 years ago when the original parchment was signed. Beginning with the Bill of Rights, successive generations have built on the work of the Founders by enabling more Americans to participate in our democracy and share in the Constitution's protections. After the Civil War, we transformed our founding charter by abolishing slavery, guaranteeing equal protection of the law for all Americans, and prohibiting racial barriers to the right to vote. We continued with the 19th Amendment's expansion of the right to vote for women, the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the 26th Amendment's extension of the right to vote to young people. These actions have marked progress along the path of equality.

As chairman of the Senate Judiciary Committee, as a lawyer, and as an American, I believe it is important for all of us to focus our efforts on ensuring that the American system of justice is living up to our Constitution and the inscription on the Vermont marble at the front entrance to the Supreme Court of the United States -- "Equal Justice Under Law."