The DMCA Must Be Narrowly Tailored To Advance A Compelling State Interest

What follows is a brief synopsis of the various cases that, taken together, prove that the DMCA must be narrowly tailored to serve a compelling state interest in order for it to pass constitutional muster. I will provide a link for each case to a more detailed discussion page. You should click to the discussion page for the highlights of each case. Be warned, however, that I have doctored the quotes from the cases slightly by making some passages bold for emphasis, and I have omitted citations and less relevant passages. I will be providing links to the original, undoctored cases, and you are encouraged to read the cases yourself to verify that I have not altered or misrepresented their meaning.

1. McIntyre v. Ohio Elections Commission (1995) (U.S. Supreme Court) The Court stated that "When a law burdens core political speech, we apply "exacting scrutiny," and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest"
2. United States v. Grace (1983) (U.S. Supreme Court) The Court noted that the Government's ability to restrict speech in public places historically associated with free speech was very limited. Any regulation of speech must be "content-neutral,. . .[and] narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." . . . Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest. " Though this case only dealt with traditional free speech zones such as sidewalks, Reno v. ACLU makes it clear that this applies to the internet as well.
3. PERRY ED. ASSN. v. PERRY LOCAL EDUCATORS' ASSN (1983) (U.S. Supreme Court) The Court noted that in public forums, "For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.. . .The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. "
4. Airport Comm'rs v. Jews For Jesus (1987) (U.S. Supreme Court) The Court once again stated that any regulation of speech in a public arena must "serve a compelling state interest and . . .[be] narrowly drawn to achieve that end." However, even in a nonpublic arena, the government can not create a Free-speech free zone. Any statute that has a realistic danger of significantly compromising recognized First Amendment protections may be facially challenged on overbreadth grounds. I extrapolate from this case that even if one were to argue that the DMCA regulates private companies such as Google and Youtube, rather than the public forum internet as a whole, it would still be unconstitutional because it is facially overbroad and significantly compromises the the First Amendment right to speak anonymously.
5. Boos v. Barry (1988) (U.S. Supreme Court) The Court ruled that a content-based D.C. law that regulated political speech in a traditionally free speech zone was unconstitutional because it was not narrowly tailored. It made the important distinction between viewpoint-neutral speech and content-neutral speech. A law can be content-based, even if it does not favor one viewpoint over another. It seems obvious that the DMCA regulates the content of what people can put in there videos, even though it does not dictate one particular viewpoint over another. Thus, the DMCA must serve a "compelling state interest" and be "narrowly drawn to achieve that end".

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