Speech versus conduct
The 2nd Circuit has issued a number of questions for the attorneys for the appellants and appellees in the 2600 case:
1. Are the anti-trafficking provisions of the Digital Millennium Copyright Act content-neutral? See 111 F. Supp. 2d 294, 328-29 (S.D.N.Y. 2000).
2. Does DeCSS have both speech and non-speech elements?
3. Does the dissemination of DeCSS have both speech and non-speech elements?
4. Does the use of DeCSS to decrypt an encrypted DVD have both speech and non-speech elements?
5. Does the existence of non-speech elements, along with speech elements, in an activity sought to be regulated alone justify intermediate level scrutiny?
6. If DeCSS or its dissemination or its use to decrypt has both speech and non-speech elements and is not subject to intermediate level scrutiny simply because of the non-speech elements, is intermediate l.evel scrutiny appropriate because of the close causal link between dissemination of DeCSS and its improper use? See 111 F. Supp. 2d at 331-32.
7. If the District Court is correct that the dissemination of DeCSS "carries very substantial risk of imminent harm," 111 F. Supp. 2d at 332, does that risk alone justify the injunction? In other words, does that risk satisfy the requirements for regulating speech under Brandenburg v. Ohio, 395 U.S. 444 (1969), thereby rendering unnecessary an inquiry as to whether non-speech elements of DeCSS or its dissemination or its use (if such exists) may be regulated under United States v. O'Brien, 391 U.S. 367 (1968)?
8. Are the three criteria identified at 111 F. Supp. 2d 333 the correct criteria for determining the validity, under intermediate level scrutiny, of the use of DeCSS that has been enjoined?
9. If not, what modification or supplementation would be required to conform to First Amendment requirements?
10. Are the three criteria identified at 111 F. Supp. 2d 341 and the "clear and convincing evidence" standard the correct criteria and the correct standard of proof for testing the validity of the injunction's prohibition of posting on the defendant's website and of linking?
11. If not, what modification or supplementation would be required to conform to First Amendment requirements?
It's a relief (no pun intended) that the Court is considering the first amendment issues seriously, because at oral argument they seemed to ignore them, for the most part. Now the question is, among other things, how to convince them.
It does seem that the speech and conduct distinctions are often artificial. Professor Junger wrote a bit where he pointed out that speakers always engage in conduct in connection with their speech -- for example, breathing and wearing clothing (Junger's examples). And speech always has an effect, and knowledge (and social relationships) may be more consequential than "conduct".
It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and, if believed, is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason.(Justice Holmes, dissenting, in Abrams v. U.S., 268 U.S. 652 (1925), at 668.)
And if we didn't believe that what we said would do something, would we bother to say it at all?
