Matthew Green v. DOJMatthew Green v. DOJ
Benjamin D. Margo argued the cause for appellants. On the briefs were Corynne McSherry, Mitchell L. Stoltz, Brian M. Willen, and Lauren Gallo White.
John W. Crittenden was on the brief for amicus curiae Legal Scholars in support of appellants.
Charles Duan was on the brief for amici curiae Public Knowledge, et al. in support of appellants.
Jack I. Lerner was on the brief for amicus curiae Kartemquin Educational Films and International Documentary Association in support of appellants.
Vivek Krishnamurthy was on the brief for amicus curiae Accessibility, Archival, and Security Fair Users in support of appellants.
Brian J. Springer, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Daniel Tenny, Attorney.
John Matthew DeWeese Williams and Lucy Holmes Plovnick were on the brief for amici curiae Association of American Publishers, Inc., et al. in support of appellees.
David Jonathan Taylor was on the brief for amici curiae DVD Copy Control Association, Inc. and Advanced Access Content System Licensing Administrator, LLC in support of appellees.
Before: HENDERSON, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: Twenty-six years ago, Congress enacted the Digital Millenium Copyright Act to protect copyrighted works made available online from digital piracy and unauthorized access. Plaintiffs-Appellants, a computer
Having abandoned their as-applied challenges, plaintiffs seek outright invalidation of a central pillar of the Act as overbroad and a prior restraint on speech in violation of the First Amendment. We reject both facial challenges.
I.
A.
The First Amendment and Copyright Clause appear, at first glance, to be in tension. The First Amendment guarantees freedom of speech, see
That said, to avoid impeding robust expression, courts have long recognized a common-law doctrine of “fair use” that implies an “author‘s consent to a reasonable use of his copyrighted works” by other speakers. Harper & Row, 471 U.S. at 549 (quoting Horace G. Ball, Law of Copyright and Literary Property 260 (1944)). Fair use has historically limited copyright owners’ exclusive rights in order to facilitate certain uses of information by nonowners. In the Copyright Act of 1976, which gave copyright holders “a bundle of exclusive rights” to their copyrighted work, Congress codified fair use as an affirmative defense to a claim of copyright infringement. Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 526-27 (2023) (quoting Harper & Row, 471 U.S. at 546). The fair use doctrine permits the use of copyrighted work “for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research,”
In acknowledging that the fair use defense serves constitutional values, we do not mean to suggest that Congress lacks freedom to alter the contours of that defense. To the contrary, the Supreme Court has consistently acknowledged Congress‘s power to “take a fresh look” should it disagree with judicial application of fair use doctrine. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984). And Congress has in fact done so at various points throughout the nation‘s history. For instance, while Justice Story once recognized abridgment as one type of non-infringing fair use, Folsom v. Marsh, 9 F. Cas. 342, 344-45 (C.C.D. Mass. 1841), Congress later extended copyright‘s protection to exclusive abridgement rights, see Copyright Act of 1909 § 1(b), Pub. L. 60-349, 35 Stat. 1075 (1909); see also Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. Copyright Soc‘y U.S.A. 209, 214 (1982).
Fair use plays a key role in striking a balance between expression and prohibition in copyright law. But because the line between uses that are fair and those that are infringing eludes crisp definition, creators relying on fair use as a defense against claims of copyright infringement inevitably face some uncertainty. Courts determine case by case whether use of a copyrighted work constitutes fair use, sometimes based on subsidiary factual determinations made by juries. See Google LLC v. Oracle Am., Inc., 593 U.S. 1, 23-26 (2021). Indeed, the Supreme Court has described reliance on a “potential fair use defense” as a “roll [of] the dice,” subjecting the user of copyrighted material to a “notoriously fact sensitive” analysis that typically cannot be resolved “without a trial.” Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 275 (2020).
That uncertainty risks chilling some privileged speech, but it inheres in the contextual character of the fair use defense. The Copyright Act directs courts determining whether a work constitutes fair use to consider a non-exhaustive list of factors, including:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
-
the effect of the use upon the potential market for or value of the copyrighted work.
B.
With the rise of streaming services and electronic readers, the public enjoys unprecedented access to copyrighted materials. Billions of people worldwide can stream copyrighted TV shows into their homes, listen to copyrighted music through the smartphones in their pockets, or instantaneously download copyrighted novels onto an e-reader. In the 1990s, Congress anticipated that “the movies, music, software, and literary works that are the fruit of American creative genius” could soon be accessed “quickly and conveniently via the Internet.” S. Rep. No. 105-190, at 8 (1998). Spurred by that accurate forecast and obligated to implement two World Intellectual Property Organization treaties, Congress erected new legal guardrails to facilitate those advances. After all, “without reasonable assurance that they will be protected against massive piracy,” copyright owners could hardly be expected to make their works readily available on the internet or in digital form. Id.
Enter the Digital Millenium Copyright Act (DMCA),
The first provision is the Act‘s anticircumvention provision, which forbids “circumvent[ing] a technological measure that effectively controls access to a work protected” by copyright law.
The anticircumvention provision is subject to statutory and regulatory exemptions. Section 1201 itself provides some exemptions. For example, nonprofit libraries may overcome technological controls to gain access to copyrighted work if they do
Congress also created a rulemaking process to more dynamically exempt categories of circumvention activity from the DCMA. Under
The culmination of each triennial rulemaking cycle is a final rule that exempts identified types of uses of copyrighted work from the anticircumvention provision. For example, in the most recent final rule issued in 2021, the Librarian exempted certain researchers’ use of “literary works . . . distributed electronically” insofar as their use is “solely to deploy text and data mining techniques on a corpus of literary works for the purpose of scholarly research and teaching.” Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies (2021 Final Rule), 86 Fed. Reg. 59,627, 59,639/1 (Oct. 28, 2021) (codified at 37 C.F.R. § 201.40(b)(5)). Specific uses of motion pictures are also exempted, including “in order to make use of short portions of the motion pictures . . . for the purpose of criticism or comment . . . for use in documentary filmmaking” or where a film of any type makes use of the clip for parody or for its biographical or historical significance. Id. at 59,637/3 (codified at 37 C.F.R. § 201.40(b)(1)).
Congress envisioned this rulemaking process as a “fail-safe” to ensure that the anticircumvention provision leaves breathing room for noninfringing uses, including fair use, of copyrighted content. See H.R. Rep. No. 105-551, pt. 2, at 36 (1998). Indeed, the triennial rulemaking scheme was Congress‘s response to concerns widely voiced during the drafting of the DMCA that, if not carefully crafted, it might “create a ‘pay-per-use’ society” without adequate protection for noninfringing expression. Id. at 26; see also David Nimmer, A Riff on Fair Use in the Digital Millenium Copyright Act, 148 U. Penn. L. Rev. 673, 716-26 (2000) (explaining the emergence of this “fail-safe” after legislative backlash to an earlier draft of the DMCA that did not include explicit protections for fair use). If the Act entitled owners of information to “lock up” all access—as it might in a fully digitized environment—would-be fair users of information could be relegated to negotiating access on terms set by the monopoly rights-holders. Nimmer, supra, at 717-19. The Act‘s drafters sought to avoid such threat to fair uses by balancing the right against circumvention with access protections for certain non-infringing uses.
The second provision of Section 1201 at issue in this appeal—the antitrafficking provision—is not subject to the triennial rulemaking cycle‘s exemptions. That provision is, in effect, a ban on trafficking in digital lock picks. It prohibits “manufactur[ing], import[ing], offer[ing] to the public, provid[ing], or otherwise traffic[king] in any technology, product, service, device, [or] component” that: (1) is “primarily designed
Section 1201(c) clarifies that “[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”
C.
Plaintiff Matthew Green, a computer science professor at Johns Hopkins University, conducts research on security flaws in widely used electronic systems and notifies manufacturers of his findings. For example, he previously identified security flaws in automotive anti-theft systems, website encryption, and Apple‘s iMessage system. Although section 1201(j) provides an exemption for certain forms of “security testing,” Green believed that exemption was “both overly narrow and vague,” Compl. 79 (J.A. 30). So Green requested in the 2015 rulemaking cycle a broader exemption from the Librarian of Congress to cover his research. But the 2015 final rule‘s security research exemption was, in Green‘s view, likewise too narrowly drawn.
Because he could not rely on the statutory or regulatory exemptions, Green claimed, his fear of liability under section 1201(a) caused him to “decline to investigate certain devices,” “chilled [him] from informing others of vulnerabilities,” and “prevent[ed] Green from selling a book that might garner significant commercial sales discussing how to circumvent access controls.” Id. ¶¶ 80-87 (J.A. 30-31). Green claimed that both his circumvention of access controls to conduct security research and his publication of information about his work are protected by the First Amendment, and that the DMCA is thus unconstitutional as applied to those planned activities.
Plaintiffs Andrew “bunnie” Huang and his audiovisual media company, Alphamax (collectively, Huang), also alleged that section 1201(a) chills their constitutionally protected expression. Huang seeks to create and commercially sell a device he calls “NeTVCR,” which would allow users to save, manipulate, convert, and edit high-definition digital video streams. Id. ¶¶ 89-91 (J.A. 32). Those video streams—like shows on Netflix, for example—are generally protected by a technology called High-bandwidth Digital Content Protection (HDCP), which prevents unauthorized copying or capturing of copyrighted content by people lawfully streaming it on their devices. The NeTVCR device operates by circumventing that protection technology.
Huang claimed that his NeTVCR device would permit users to “engage in new forms of protected and noninfringing expression.”
The plaintiffs sued to invalidate section 1201, urging that the anticircumvention and antitrafficking provisions are facially overbroad and that the Librarian of Congress‘s triennial rulemaking process is an invalid speech-licensing regime—all in violation of the First Amendment. Id. ¶¶ 111-28 (J.A. 36-38). They also brought as-applied challenges to the anticircumvention and antitrafficking provisions, contending that those prohibitions unconstitutionally burden their specific expressive activities. Id. ¶¶ 129-49 (J.A. 38-41). And they argued that the Librarian of Congress‘s denial of their requested exemptions in the 2015 rulemaking cycle violated the First Amendment and Administrative Procedure Act. Id. ¶¶ 150-62 (J.A. 41-42).
The government moved to dismiss the complaint and plaintiffs cross-moved for a preliminary injunction. The district court stayed the preliminary injunction motion pending its decision on the motion to dismiss. The court later granted in part and denied in part the government‘s motion to dismiss, dismissing plaintiffs’ facial First Amendment challenges and APA claims, but denying the motion to dismiss as to their as-applied claims. Green v. U.S. Dep‘t of Justice, 392 F. Supp. 3d 68, 85-100 (D.D.C. 2019).
The court dismissed the facial overbreadth challenge on the basis of plaintiffs’ failure to allege that the DMCA would ““have any different impact on third parties’ interests in free speech than it has on’ their own.” Id. at 88 (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 802 (1984)). And it rejected plaintiffs’ contention that the triennial rulemaking constituted a prior restraint, holding that it did not effect any content-based censorship. Id. at 89-90. The court concluded that plaintiffs failed to allege “facts indicating that the rulemaking defendants’ decision of whether to grant exemptions in the 2015 rulemaking process was based on the content of what those who sought exemptions wanted to say, their viewpoint, or who they are.” Id. at 90. The court also dismissed plaintiffs’ APA claims, holding that the triennial rulemaking process is not subject to the APA. Id. at 96-100. (We later rejected that proposition in Medical Imaging & Technology Alliance v. Library of Congress, 103 F.4th 830, 836 (D.C. Cir. 2024)).
But the district court denied the government‘s motion to dismiss plaintiffs’ as-applied First Amendment claims. The court held that the government failed to meet its burden to show that section 1201(a) does not encumber substantially more of plaintiffs’ speech than necessary to further its interest—the test required under intermediate scrutiny. Green, 392 F. Supp. 3d at 94-95.
Plaintiffs then renewed their motion for a preliminary injunction on their as-applied claims, which the district court denied. Green v. U.S. Dep‘t of Justice, No. 16-1492, 2021 WL 11637039 (D.D.C. July 15, 2021). By this time, the Librarian of Congress in the 2018 rulemaking cycle had granted Green‘s request for an exemption
As to Huang, assuming without deciding that his proposed use and sale of his circumvention device counted as speech, the district court held that the government satisfied its burden under intermediate scrutiny to justify application of section 1201(a)‘s anticircumvention and antitrafficking provisions to his proposed conduct. Id. at *7-10. The court noted that Huang‘s technology, as described, would “eviscerate virtually every single video content delivery protection system,” and thus would expose anything displayable on a modern TV screen or laptop to widespread piracy. Id. at *8. The court accordingly held that, as applied to Huang, Section 1201(a) does not burden substantially more speech than necessary.
We affirmed the district court‘s denial of preliminary injunctive relief in Green v. U.S. Dep‘t of Justice, 54 F.4th 738 (D.C. Cir. 2022). We declined on that appeal to exercise jurisdiction over the court‘s earlier dismissal of the facial claims because the court had not entered judgment on plaintiffs’ still pending as-applied claims, so the order granting in part the government‘s motion to dismiss was not yet final and appealable under
On remand, plaintiffs voluntarily dismissed their as-applied claims. Once the district court entered final judgment, plaintiffs appealed the district court‘s earlier order dismissing their facial First Amendment challenges to section 1201(a) for failure to state legally viable claims under
II.
At the core of plaintiffs’ challenge to section 1201(a) of the DMCA is its asserted incongruence with the fair use exception to copyright infringement liability. An individual who circumvents technological protection measures on a copyrighted work to make fair use of the work is immunized by the fair use defense from liability for infringing the copyright. But, unless an anticircumvention exemption applies, her conduct may nonetheless violate the DMCA‘s anticircumvention provision. What good is the fair use defense, the plaintiffs ask, if the DMCA prohibits them
Consider a filmmaker making a fictionalized drama about emergency responders to the September 11th attacks who wants to stage a scene in which the responders’ families watch real-life footage of the immediate aftermath of the attacks on a television set. If use of copyrighted footage for that purpose constitutes fair use, the filmmaker would not be liable for infringement. See, e.g., Fioranelli v. CBS Broadcasting Inc., 551 F. Supp. 3d 199, 240-41 (S.D.N.Y. 2021). But if the filmmaker circumvented technological controls in order to obtain the footage, the court‘s fair use determination would not shield against liability under the DCMA, unless her use of the clip fell within one of the anticircumvention provision‘s statutory or regulatory exemptions. (As it happens, the use would likely qualify under the 2021 Final Rule‘s exemption permitting circumvention to use clips for their “historically significant nature,” 86 Fed. Reg. at 59,637/3 (codified at 37 C.F.R. § 201.40(b)(1)), but at the time of plaintiffs’ complaint, that exemption only accommodated circumvention by documentary filmmakers using those clips—not creators of fictional films.) In other words, some individuals who seek to make fair use of copyrighted work may find themselves stymied, not by copyright infringement laws, but by the DMCA‘s prohibition on circumventing technological controls in order to freely obtain high-quality and manipulable versions of clips of copyrighted works.
In plaintiffs’ view, a mismatch in protection for fair use under traditional copyright law and under the DMCA renders the latter unconstitutional. They assert that all fair use is protected by the First Amendment, so section 1201(a) cannot validly prohibit circumvention by individuals for the purpose of making fair use of copyrighted works. And they argue that Congress‘s explicit attempt to build fair-use accommodations into section 1201(a) via the triennial rulemaking process merely compounded the First Amendment injury: In its effort to alleviate the Act‘s burden on fair users, plaintiffs contend, Congress transformed the Librarian of Congress into a censor who wields broad discretion to grant exemptions to favored messages and speakers.
Key to plaintiffs’ theory is their view that fair use of copyrighted work is necessarily protected by the First Amendment. We later explain why that assumption is erroneous, but it is worth considering at the outset what it would mean for plaintiffs’ theory if true.
If plaintiffs were right that would-be speakers have a blanket First Amendment right to circumvent in the service of uses that would be fair under copyright law, the triennial rulemaking‘s exemption scheme would be essentially redundant: With or without a regulatory exemption, fair users could circumvent technological protections of copyrighted works and claim a First Amendment defense to liability under the DMCA.
An irony of appellants’ challenge to the DMCA is that the triennial rulemaking exemption scheme—which identifies in advance and immunizes categories of likely fair uses—may be less chilling of the fair uses to which it applies than the after-the-fact operation of the fair use defense itself. Recall that the Supreme Court has referred to the use of copyrighted materials under the protection of a “potential fair use defense” as a “roll [of] the dice.” Public.Resource.Org., 590 U.S. at 275. The 9/11 drama‘s creator, for example, may not be able to anticipate with certitude that her use of archival footage would be noninfringing, given that fair use turns on a “notoriously fact sensitive” analysis. Id. A decision to include the archival footage carries legal risk. In contrast, by promulgating general rules in advance, the anticircumvention exemption scheme gives the filmmaker clearer notice of the legality of specific forms of circumvention, thus reducing the chill of legal uncertainty under the DMCA relative to the chill inherent in copyright law‘s fair use doctrine.
More fundamentally, if appellants were correct that the First Amendment protected circumvention undertaken for fair use ends, then section 1201(a)‘s regulatory exemptions would simply serve as an additional layer of protection for fair users, providing up-front confirmation to those fair users who fall within the scope of the exemptions that their circumvention is permitted. What is more, even as to actions not covered by a DMCA statutory or regulatory exemption, under plaintiffs’ view, the filmmaker would have a First Amendment right to circumvent: She would be free to take her chances by circumventing and proving that her use of the clip is fair use and thus constitutionally protected. So it is hard to see how, under plaintiffs’ view of the law, section 1201(a) operates to chill speech.
But we disagree that the First Amendment necessarily shields all fair uses of copyrighted work from regulation, and, regardless, Congress‘s objective to promote rather than chill speech is no guarantee that its enactment survives a First Amendment challenge. We accordingly proceed to address why, under each doctrinal framework plaintiffs deploy, their facial challenges fail. First, we explain that plaintiffs have not satisfied the overbreadth doctrine‘s exacting requirement to demonstrate unconstitutional applications of section 1201(a) that are substantially disproportionate to its lawful sweep. Second, we explain why the anticircumvention provision‘s regulatory exemption scheme is not an unconstitutional prior restraint on speech.
A.
Plaintiffs contend that section 1201(a) “burden[s]” expressive conduct that “consists substantially of noninfringing speech that the First Amendment protects,” rendering the section facially overbroad. Appellants’ Br. 47; see Reply Br. 3-9. They emphasize that the anticircumvention provision prevents non-parties such as some filmmakers and teachers from accessing high-quality versions of copyrighted works to engage in speech that would qualify as fair use—speech that plaintiffs argue cannot be burdened without running afoul of the First Amendment. Because plaintiffs assert that section 1201(a)‘s “applications to protected speech outweigh its legitimate sweep,” they contend the law‘s anticircumvention and antitrafficking provisions are wholly invalid. Reply Br. 24.
Facial invalidation of a statute for overbreadth is disfavored. It “is ‘strong medicine’ that is not to be ‘casually employed.‘” United States v. Hansen, 599 U.S. 762, 770 (2023) (quoting United States v. Williams, 553 U.S. 285, 293 (2008)). Only if “a substantial number of its applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep,” will a law fail for overbreadth. United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Repub. Party, 552 U.S. 442, 449 n.6 (2008)). The unconstitutional applications must be “realistic, not fanciful,” and “substantially disproportionate” to the statute‘s lawful applications. Hansen, 599 U.S. at 770. Unless the ratio between a statute‘s unlawful applications and its lawful ones is so “lopsided” as to support an overbreadth
Plaintiffs’ facial overbreadth challenge is especially disfavored because section 1201(a) expressly regulates conduct—the circumvention of technological locks, and trafficking in means of circumvention—rather than speech. The DMCA defines circumvention as the act of “descrambl[ing] a scrambled work, decrypt[ing] an encrypted work, or otherwise . . . avoid[ing], bypass[ing], remov[ing], deactivat[ing], or impair[ing] a technological measure.”
of lock picks for breaking into bookstores identified with the expressive conduct of reading the stores’ books. Gov‘t Br. 24. The overbreadth doctrine is an awkward tool with which to attack the
The plainly legitimate sweep of
The “heartland” conduct the anticircumvention and antitrafficking provisions criminalize is piracy of digital property
Many legitimate applications of the challenged provisions are undisputed by the plaintiffs. The government notes and plaintiffs do not contest that the anticircumvention provision bars individuals from hacking into a music streaming service to access its catalogue for free. Gov‘t Br. 21-22. Similarly, the provision forbids overriding the time restriction on a digital movie rental to have permanent access to it. And the antitrafficking provision “prevents the distribution of tools that would enable the sort of circumvention discussed above on a massive scale.” Id. at 22. Plaintiffs do not argue that any of those applications of the statute violate the
In addition, we have already sustained
Plaintiffs nonetheless insist there are “numerous specific categories of third-party speech impermissibly burdened by
Plaintiffs’ insistence that their examples establish unconstitutional applications of the
First, plaintiffs posit that the
If every work that the public might wish to access “could be pirated away” via circumvention, soon nothing worth reading would be published electronically. Id. Plaintiffs’ premise that fair users are entitled to make unauthorized use of copyrighted works assumes away the very entitlements copyright law validly protects. Consumers’ access to copyrighted work routinely requires consent from the copyright owner—typically obtained by paying for access subject to certain limitations on use.
Plaintiffs’ argument to the contrary proves too much. On their logic, a theatre critic wishing to run a photograph with his review would be exempted from the theater‘s no-photographing rule. That would be a significant extension of the
Second, plaintiffs alternatively assert that when an individual circumvents to obtain copyrighted work for use in her own expression, that circumvention is constitutionally protected as a “step in the creation of speech,” akin to filming or newsgathering. Price, 45 F.4th at 1070. Even assuming that some circumvention is constitutionally privileged because necessary to constitutionally protected expression using the copyrighted work,
Plaintiffs have not made the showing needed to survive that
As alleged, none of plaintiffs’ potential applications of
As to the first two intermediate-scrutiny factors,
What is more, plaintiffs’ hypothetical teacher‘s DVD use is currently facilitated by a regulatory exemption permitting him to circumvent for the hypothesized purpose. See 2021 Final Rule, 86 Fed. Reg. at 59,637/3 (codified at
We do not purport to pass on every circumstance in which a speaker seeks to circumvent a copyrighted work‘s technological controls to make fair use of the work. It could be that “incidental restriction[s] on alleged
B.
Recognizing that
Plaintiffs cast the Librarian of Congress‘s authority to grant exemptions to the anticircumvention provision as akin to a censor‘s speech-licensing power. As they see it,
As explained above, the Librarian of Congress determines through a rulemaking proceeding whether and how the anticircumvention provision has, or is likely to have, an adverse effect on people‘s ability to make noninfringing uses of classes of copyrighted works.
It is generally fair to say that what the fair use defense does for copyright infringement, the exemptions do for
Plaintiffs’ facial challenge to the Librarian‘s exemption authority requires us to determine, at the threshold, whether the
Plaintiffs’ speech-licensing claim fails at the threshold. The
Again, not all government licensing schemes are subject to the “extraordinary doctrine” permitting facial
Generally applicable laws that are not aimed at expression or conduct commonly associated with expression do not pose those censorship dangers. In City of Lakewood, the Supreme Court explained that a law requiring building permits and an ordinance requiring soda vendors to obtain permits to place machines on public property are not vulnerable to speech-licensing challenges “prior to an allegation of actual misuse.” Id. at 761. The Court recognized those laws could be abused to censor, “such as when an unpopular newspaper seeks to build a new plant,” but held they are “too blunt a censorship instrument” to be facially subject to the prior restraint doctrine‘s exacting review. Id. Licensing schemes that are not “most likely to be in fact an instrument of censorship” are better addressed through as-applied challenges. The Tool Box v. Ogden City Corp., 355 F.3d 1236, 1242 (10th Cir. 2004) (en banc).
The
To begin,
But that argument fails because circumventing copyright works’ technological protections has no necessary or ordinary function as a facilitator of speech. To the contrary, plaintiffs do not even allege that
Compare the scope of
The
The Fifth Circuit‘s decision in Moore v. Brown, 868 F.3d 398 (5th Cir. 2017) (per curiam), aptly illustrates the point. There, an evangelical Christian regularly set up a large sketch board in a public park in Dallas seeking to spread his message by engaging passersby in conversation about
Finally, we note that plaintiffs nowhere contend that the challenged
Constitutional disapproval of prior restraints is a mismatch for the
In Ward v. Rock Against Racism, for example, the Supreme Court upheld a New York City noise control regulation of concerts at a Central Park bandshell. 491 U.S. at 784. To avoid having to shut down concerts once they became too loud, as it had done in the past, the city required all performances to use city-provided sound equipment and technicians. Id. at 784-88. The majority rejected the charge that the law was a “quintessential prior restraint,” id. at 808 (Marshall, J., dissenting), stressing that it “grant[ed] no authority to forbid speech, but merely permit[ted] the city to regulate volume to the extent necessary to avoid excessive noise,” id. at 795 n.5 (majority op.). Applying the same logic, the Supreme Court declined to analyze as a prior restraint an injunction imposing a buffer zone around an abortion clinic, noting that the protestors were “not prevented from expressing their message in any one of several different ways.” Madsen v. Women‘s Health Ctr., Inc., 512 U.S. 753, 763 n.2 (1994); see also Hill v. Colorado, 530 U.S. 703, 734 (2000) (rejecting prior restraint challenge where “absolutely no channel of communication is foreclosed. No speaker is silenced. And no message is prohibited.“). The same holds true of section
Our holding does not insulate the Librarian‘s exemption determinations from judicial review. As-applied challenges remain
* * *
For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.