Safeguarding Fair Use Through First Amendment’s Asymmetric Constitutional Fact Review

Courts have recently overturned jury verdicts on the question of fair use. While this Essay offers a new perspective on these cases, the main goal is more ambitious: a theoretical framework to heighten protection for the free expression interests of users of copyrighted works. This is the first work to offer a theoretical justification and limiting-principle for constitutional fact review, and to extend this framework to copyright fair use. This thesis relies on the following three propositions. First, constitutional fact review should be a one-way, asymmetric review, rather than a two-way, symmetric review. The circuit courts of appeals are split on this issue, and the Supreme Court has declined to resolve the split. Second, the copyright fair use analysis embeds First Amendment interests. By embedding First Amendment issues within copyright fair use and denying independent First Amendment scrutiny, the Court has de facto constitutionalized the fair use inquiry. And lastly, as a proxy for First Amendment interests, fair use should receive added protection of independent appellate review – like other speech-implicating cases. Specifically, this Essay argues copyright fair use should receive asymmetric, constitutional fact review. The question of the appropriate standard of appellate review for fair use decisions is underexplored and undertheorized. This Essay fills that gap