SMU Law Review Volume 74 Issue 1 Article 5 2021 Barring Immoral Speech in Patent and Copyright Ned Snow University of South Carolina School of Law,
[email protected] Follow this and additional works at: https://scholar.smu.edu/smulr Part of the First Amendment Commons, and the Intellectual Property Law Commons Recommended Citation Ned Snow, Barring Immoral Speech in Patent and Copyright, 74 SMU L. REV. 163 (2021) https://scholar.smu.edu/smulr/vol74/iss1/5 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. BARRING IMMORAL SPEECH IN PATENT AND COPYRIGHT Ned Snow* ABSTRACT In the past three years, the Supreme Court has twice ruled that Con- gress’s moral bars to trademark protection violate the First Amendment. Those rulings raise a simple question in other areas of intellectual property. Does the First Amendment preclude Congress from denying patent or cop- yright protection based on a moral reason? Congress, for instance, might deny patent protection for inventions directed toward the consumption of marijuana. Inventors would accordingly choose not to disclose knowledge about those inventions to the public, and the denial would chill their speech. Similarly, Congress would chill speech if it denied copyright pro- tection for moral reasons. A copyright bar to statues of the Confederacy, for instance, would deter artists from speaking such content. Hence, through patent and copyright, Congress might seek to influence speech in accord with its moral viewpoint.