STANFORD LAW REVIEW ONLINE
these prosecutorial actions are proceedings
, in which the “defendant” isnot the operator of the site but the domain name itself. Both bills suggest thatthese remedies can be meted out by courts after nothing more than
proceedings—proceedings at which only one side (the prosecutor or even a pri-vate plaintiff) need present evidence and the operator of the allegedly infring-ing site need not be present nor even made aware that the action was pendingagainst his or her “property.”This not only violates basic principles of due process by depriving personsof property without a fair hearing and a reasonable opportunity to be heard, italso constitutes an unconstitutional abridgement of the freedom of speech pro-tected by the First Amendment. The Supreme Court has made it abundantlyclear that governmental action suppressing speech, if taken prior to an
and subsequent judicial determination that the speech in ques-tion is unlawful,
is a presumptively unconstitutional “prior restraint.” In otherwords, it is the “most serious and the least tolerable infringement on FirstAmendment rights,”
permissible only in the narrowest range of circumstances.The Constitution requires a court “to make
a final determination”
that the ma-terial in question is unlawful “
after an adversary hearing before
the material iscompletely removed from circulation.
The procedures outlined in both bills fail this fundamental constitutionaltest. Websites can be “completely removed from circulation”—rendered un-reachable by, and invisible to, Internet users in the United States and abroad—immediately upon application by the government, without
reasonable op-portunity for the owner or operator of the website in question to be heard or topresent evidence on his or her own behalf. This falls far short of what the Con-stitution requires before speech can be eliminated from public circulation.As serious as these infirmities are, SOPA, the House’s bill, builds uponthem, enlarges them, and makes them worse. Under SOPA, IP rights holderscan proceed vigilante-style against allegedly offending sites, without
courthearing or any judicial intervention or oversight whatsoever. For example,SOPA establishes a scheme under which an IP rights holder need only notifycredit card companies of the facts supporting its “good faith belief” that anidentified Internet site is “primarily designed or operated for the purpose of”infringement. The recipients of that notice will then have five days to cease do-ing business with the specified site by taking “technically feasible and reason-able” steps to prevent it “from completing payment transactions” with custom-ers. And all of this occurs based upon a notice delivered by the rights holder,which no neutral third party has even looked at, let alone adjudicated on themerits. If they get the assistance of a court, IP owners can also prevent other
Freedman v. Maryland, 380 U.S. 51, 58-60 (1965).
Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).
Ctr. For Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606, 657 (E.D. Pa. 2004)(emphasis added).