Reconciling the "Moral Rights" of Authors with the First Amendment Right of Free Speech

The article concludes that the First Amendment does not significantly limit the enforcement of those moral rights recognized by state and federal law. Several features of moral rights laws support this conclusion. First, many acts that infringe moral rights do not qualify as speech, and therefore receive no First Amendment protection. For example, the droit de suite, or resale right, is clearly constitutional under this rationale, as it involves no speech whatsoever.

Second, even when the offending act is speech, most moral rights laws can be justified, depending on the circumstances, by one or more of several arguments. Indeed, many moral rights statutes are categorically valid under the First Amendment. The rights to preserve the integrity of works and to prevent destruction of those works are valid even when the offending act involves speech, as the governing laws regulate speech without regard to its content. The right to control when a work is disclosed to the public is also a valid content-neutral regulation for the same reason.

The various rights to police who can be named as author of a work are categorically valid when they are applied to commercial speech, as those rights either regulate false statements in commerce or require the disclosure of additional relevant information. Taken together, these situations comprise most of the moral rights disputes that are likely to arise. Thus, in most cases a party who seeks to enforce her moral rights will have no difficulty overcoming a First Amendment defense.