Supreme Court’s Use of History and Tradition in IP-First Amendment Cases Faces Critique

Answer first: The Supreme Court has increasingly invoked history and tradition to define constitutional rights, including in First Amendment cases involving intellectual property. This approach, seen in rulings on rights of publicity and copyright, often bypasses strict scrutiny and raises concerns about speech restrictions. This a…

Litigation context for IP teams

The Supreme Court has recently emphasized appeals to “history and tradition” to delineate constitutional rights, notably in landmark cases such as New York State Rifle & Pistol Association, Inc. v. Bruen (2022) concerning the Second Amendment, and Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade and addressed bodily autonomy. While this historical approach is prominent in these contexts, it is not new to First Amendment jurisprudence, particularly in cases involving intellectual property (IP) rights that affect freedom of speech.

This essay examines how the Court’s reliance on history and tradition has shaped IP-First Amendment cases. It begins by reviewing the emergence of this approach as an alternative to the traditional “strict scrutiny” test, then analyzes key IP cases where historical reasoning supported expansions of IP rights despite their impact on speech, including reporting, copying, and parody. The discussion concludes with reflections on the necessity of maintaining harm-tailored regulation even when invoking historical precedent.

Key takeaways for history and tradition in IP First Amendment cases

• Confirm how the development affects litigation ownership, enforcement, licensing, or portfolio records.
• Separate confirmed facts from legal interpretation before advising business teams.
• Map deadlines, affected assets, contracts, and evidence files to the responsible internal owner.
• Use the issue as a prompt for monitoring, filing strategy, dispute preparation, or member education.

Practical analysis

Strict scrutiny, as detailed by Richard Fallon in 2007, became dominant in constitutional law by the 1960s, requiring government regulations affecting speech to be narrowly tailored to serve compelling interests and to use the least restrictive means, as reaffirmed in Reed v. Town of Gilbert (2015). Initially, the Roberts Court appeared poised to apply strict scrutiny robustly to limit speech regulations, exemplified by United States v. Stevens (2010), which rejected legislative creation of new categories of unprotected speech beyond historically recognized exceptions.

However, shifts in the federal judiciary and Supreme Court openness to overturning precedent have brought the history-and-tradition approach to the fore. This method distinguishes constitutional from unconstitutional regulations by reference to longstanding practices, as seen in Second Amendment and bodily autonomy cases. The question arises whether this framework applies similarly to First Amendment law.

Before the explicit rise of this methodology, the Supreme Court had already evaluated IP rights for First Amendment consistency using historical analysis, notably the rights of publicity and copyright, without applying formal scrutiny levels. The right of publicity protects individuals’ control over commercial use of their identity markers. In Zacchini v. Scripps-Howard (1977), the Court upheld a circus performer’s claim against a TV station that broadcast his entire act without consent, framing the performer’s interest akin to a common-law copyright claim protecting creative works and performances from unauthorized fixation.

Despite this, lower courts expanded the right of publicity far beyond Zacchini’s scope, approving claims against uses such as digital depictions of celebrities in video games, bobblehead dolls, artistic portrayals of the Three Stooges, and background references in videogames. Some courts have allowed claims even when the use involved parody or truthful speech, complicating the doctrine and increasing risks of chilling effects on expression.

The lack of rigorous historical analysis in these lower court decisions arguably contributed to overextension of publicity rights, including into artistic domains. While some may dismiss concerns about celebrity evocation in advertising, the extension of publicity rights to art raises significant free speech issues. Moreover, the absence of clear doctrinal limits means public figures could potentially challenge truthful, nonmisleading commercial speech that necessarily references their identities.

More recently, the Supreme Court applied history and tradition to reject First Amendment challenges to copyright legislation without engaging in intermediate or strict scrutiny. In Eldred v. Ashcroft (2003), the Court upheld Congress’s 1998 extension of copyright terms by emphasizing the constitutional copyright clause and historical compatibility between early copyright laws and the Bill of Rights. The Court noted internal copyright safeguards such as fair use and the exclusion of ideas and facts from protection, concluding no additional First Amendment analysis was warranted despite delayed public domain entry.

Similarly, in Golan v. Holder (2012), the Court upheld restoration of copyright to foreign works previously unprotected due to formalities, reasoning that Congress acted within traditional copyright contours by granting federal protection to existing works, consistent with early congressional practices.

However, these cases raise questions about what constitutes “traditional contours” of copyright, given significant changes since the Founding. Originally, copyright covered only maps, books, and charts, excluding visual art, music, and sculpture. Moreover, copyright initially protected only copying, whereas modern law extends control to public performance and derivative works such as sequels and translations.

This evolving scope complicates reliance on history and tradition as a definitive guide for constitutional limits on IP rights affecting speech. The essay concludes that despite the Court’s turn toward historical analysis, considerations central to free speech jurisprudence—particularly the need to tailor regulations to prevent harm—remain essential to preserving robust First Amendment protections in the intellectual property context.

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