This Sounds Like a First Amendment Issue to Me

It seems Florida has a law that makes it much more difficult to re-sell a used CD. Among its provisions is a prohibition on stores paying cash for used CDs — they can only give store credit. And stores must hold CDs for 30 days before reselling them. Worst of all, if reports are to be believed (I haven't seen the statute) stores must subject sellers of used CDs to the third degree:

No, you won't spend any time in jail, but you'll certainly feel like a criminal once the local record shop makes copies of all of your identifying information and even collects your fingerprints.

On top of that, stores that want to sell used CDs despite all these discouragements will have to post a $10,000 bond!

CDs, even used ones, are a form of speech covered by the First Amendment. The idea that one must register to traffic in speech strikes me as presumptively unconstitutional. I wonder how this statute could survive strict scrutiny (which I assume would be what applies?) given the assertion at ars technica that in fact there is “no proof that [stolen CDs] is a particularly pressing problem for record shops in general.”

Cites to the text of the bill, or thoughts from First Amendment mavens most welcome.

This entry was posted in Florida, Law: Free Speech. Bookmark the permalink.

6 Responses to This Sounds Like a First Amendment Issue to Me

  1. tde says:

    When I resell CDs in San Francisco, CA, I have to provide a picture ID and sign a book acknowledging the sale.

    So, if it is “free speech”, it sure has some restrictions on it . . .

  2. Archit says:

    For Florida, they are complaining about the Pawnbroking Act. 30-day holding period for goods, $10,000 for a license to be a pawnbroker, identification required from sellers. Sounds like it is aimed at traffic in stolen goods generally. I can not imagine any First Amendment issues here.

  3. Courtney says:

    I don’t think this is a first amendment issue at all. In most cases any “speech” involved is copyrighted sound recordings belonging to the record industry. If anything, the restrictions might implicate Section 109 of the Copyright Act, the “first sale” doctrine, which authorizes the transfer of lawfully made copies of copyrighted works. If the statute tried apply different regulations based on the content of the CDs, then there might be a first amendment issue, but I don’t see that.

  4. acs says:

    not sure if this is a statute, or if they’re misreporting a city ordinance that was passed in gainesville a few years back — used cd shops located within city limits were required to finger print sellers and interrogate them on the origin of the discs. obviously it was very unpopular with the student crowd, but thats generally the point in gville politics.

  5. Michael says:

    Well, if it’s a very general statute not aimed at CDs, there may not be a First Amendment issue. (And you sure used to be able to by a used CD here without a fingerprint!)

    But if it’s targeted, the fact that someone else has the copyright is irrelevant. It’s still chilling both the decision to purchase new (since resale value is lowered) and the decision to sell, and that sort of chilling effect on communication is a real problem.

  6. Pinski says:

    Florida statute – Link

    In Utah, they simply changed the definition of Pawnbroker to include secondhand dealers.
    Not sure if this link will work – Link

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