Toward a Constitutional Theory of Expression: The Copyright Clause, the First Amendment, and Protection of Individual Creativity

The author presents a unique theory of personal expression under the Constitution, which posits that underlying the first amendment and the copyright clause is the principle that the public good requires encouragement, not suppression, of individual expression. Historically, decisions undermining authors' copyrights in favor of other social goals discouraged the creativity necessary for cultural development, and Congress and the courts responded by increasing the protection of authors and expanding the domain of copyrightable works. Similarly, official proscription of commercial and offensive speech for less than the most urgent social needs threatens to inhibit the creative spirit protected by the first amendment. The author urges that the Supreme Court read the first amendment and the copyright clause as integral parts of a constitutional philosophy, fostering the framers' goals of greater personal freedom and informed social decisionmaking.