These mechanisms are less amenable to
challenge than statutes. This last point, I
argue, constitutes the most troubling
aspect of the new censorship regime.
Censorship has strong support from
politically and economically powerful
actors. Opposition to pornography online
came from all parts of the political spec-
trum—conservative evangelical groups
and liberal feminist ones both favored
restrictions. For the latest wave, the
Recording Industry Association of
America and the Motion Picture
Association of America, two Hollywood
giants, have both taken firm stands in favor
of greater IP enforcement, including cen-
sorship legislation such as the Stop Online
Piracy Act (SOPA) and the PROTECT IP
Act. Similarly, the fashion industry and
professional sports leagues have supported
domain name seizures. These groups have
a concentrated pecuniary interest in
enforcing IP laws via Internet censorship,
and they lobby accordingly.
With censorship of porn, there was an
opposition with a direct financial interest
in the outcome: the porn industry itself.
While outgunned, groups such as the Free
Speech Coalition could organize chal-
lenges and lobby for the industry’s interests (often guised as free speech concerns).
By contrast, opposition to IP-related censorship is dispersed, relatively impecunious, and politically weak. There is no
lobbying group for P2P users or streaming
sites. Indeed, some targets of the new wave
are foreign, further reducing their political
clout. This public choice story explains,
ironically, why formal attempts to codify
censorship—SOPA and PROTECT IP—
failed. The bills moved through Congress
with lightning speed until segments of the
IT community, such as ISPs and Google,
recognized the potential economic impact
for their businesses. They swiftly mounted
an expensive and effective campaign that
combined lobbying with media pressure.
And they succeeded.
The popular image of the defeat of
SOPA/PROTECT IP is of the Internet
going dark—of blackouts of sites such as
Reddit and Wikipedia in protest, and of
petitions by outraged Internet users. This
is a lovely story, but it is a story: The real
work of opposition was performed by
newly energized corporate actors with
financial interests on the line. Soft censorship does not threaten these entities’
businesses, and that is why it thrives while
legislative initiatives failed.
The indirect nature of the new wave of
censorship—which relies on pretext-based
use of general-purpose statutes, informal
pressures, and funding-based incentives—
makes it more difficult to challenge. First,
the federal government faces few constitutional constraints on its spending power.
Indeed, Congress can even engage in view-point-based discrimination in funding, if it
frames such restrictions elliptically. 18 Thus,
the government can condition its largesse
upon agreement by institutions such as
libraries and universities to censor their networks. 19 Second, courts rarely second-guess
how the executive implements laws of general application, so long as there is no overt
invidious intent. The civil forfeiture provisions of the PRO IP Act of 2008, while
opaque, manifest no such discriminatory
purpose. The decision to employ them to
pursue, principally, pirates rather than
pornographers is one conferred upon executive agencies. Finally, informal pressures—
such as the Obama administration’s role in
the negotiations between ISPs and content
producers over the new Copyright Alert
System (CAS)—evade judicial review
because they do not involve sufficient state
action. 20 Jawboning is not unconstitutional.
This pattern presents an irony: The government may do indirectly what it may not
do directly, even when
such actions are less
accountable, less trans-
• Electronic postal stamps become a reality, with the U.S. Postal Service allowing stamps to be
purchased and downloaded for printing from the Web.
• U.S. enters into an agreement with the Internet Corporation for Assigned Numbers (ICANN) to
establish a process for transitioning DNS from U.S. Government management to industry.
• Digital Millennium Copyright Act of 1998 passed.
1. Nat’l Socialist Party v. Village of
Skokie, 432 U.S. 43 (1977);
U.S. v. Alvarez, 567 U.S. __
(2012); Brown v. Ent’mt
Merchants Ass’n, 564 U.S. __
2. Reno v. Am. Civil Liberties
Union, 521 U.S. 844 (1997);
Ashcroft v. Am. Civil Liberties
Union, 542 U.S. 656 (2004).
3. Eric Goldman, Celebrating (?)
the Six-Month Anniversary of
SOPA’s Demise, FORBES, July
4. Reno, 521 U.S. at 859
(describing then- 47 U.S.C. §
5. Id. at 860 (describing then- 47
U.S.C. § 223(d)).
6. Id. at 860 n. 26, 876-77.
7. Id. at 876-886.
8. Ashcroft v. Am. Civil Liberties
Union, 542 U.S. at 656 (
striking down 47 U.S.C. § 231);
see Reno, 521 U.S. at 895-96
(O’Connor, J., dissenting).
The obscenity test is set out in
Miller v. California, 413 U.S.
9. Ashcroft, 542 U.S. at 661-662
(describing then-U.S.C. 47 §
10. Id. at 674 (Stevens, J.,
11. Lawrence Lessig, The New
Chicago School, 27 J. LEGAL
STUD. 661, 662-66 (1998).
12. 20 U.S.C. §§ 6801, 6777,
9134 and 47 U.S.C. § 254; 47
U.S.C. § 941. For state laws,
see, e.g., Am. Booksellers Found.
for Free Expression v Sullivan,
799 F. Supp. 2d 1078,
1080–81 (D. Alaska 2011).
13. See Adam Liptak, A Wave of
the Watch List, and Speech
Disappears, N. Y. TIMES, Mar.
4, 2008, at A16.
14. See U.S. INTELLECTUAL
COORDINATOR, 2011 U.S.
JOINT STRATEGIC PLAN: ONE YEAR
ANNIVERSARY 5 (June 2011),
online at www.whitehouse.gov/
sary_report.pdf; Jennifer Martinez,
US government dismisses piracy case
against Rojadirecta site, THE
HILL, Aug. 29, 2012, http://
against-rojadirecta; David Kravets,
Feds Seized Hip-Hop Site for a
Year, Waiting for Proof of
Infringement, WIRED, May 3,