Principles, Practices, and Social Movements

Abstract

Consider two current controversies in American law and politics: the first is whether the expansion of copyright, trademark, and other forms of intellectual property conflicts with the free speech principle; the second is whether government collection and use of racial data (in the census or in law enforcement) violates the antidiscrimination principle. What do these controversies have in common? Both involve constitutional challenges that call into question the legitimacy of existing practices. More importantly, these examples teach us something about how constitutional principles operate. In each case, controversy arises as people apply a longstanding principle to a longstanding practice—a practice that heretofore has not been understood to be implicated by the principle. People exercise creativity by applying the principles to these previously uncontroversial practices, and as they do, they can reshape the meaning of both the principle and the practice. The claim that a longstanding practice violates a longstanding principle draws into question not only the legitimacy of the practice, but also the authority and the scope of the principle. While some argue that the free speech principle delegitimates expansion of copyright terms and other intellectual property rights, others insist that the challenged practice is fully consistent with the free speech principle: restrictions on infringement of intellectual property rights regulate conduct, not speech, and the fair use defense and the idea/ expression distinction adequately protect free speech interests in