Whether, under the First Amendment, the government can copyright government materials that lack the force of law.
Since the 1800s, it has been clear that the government cannot copyright the text of statutes or court opinions. The question in this case is whether government materials that lack the force of law are copyrightable.
The ACLU’s amicus brief argues that, in order to satisfy the First Amendment, the government cannot hold a copyright in any works that it creates or adopts when making, enforcing, or interpreting the law. This is not limited to works that carry the force of law, but also includes materials that are core to the work of all three branches of government, including the text of proposed bills, public housing applications, official voter guides, police officer trainings, and court rules and forms.
Holding otherwise would enable states to charge the public money to access government work, and to pick and choose who gets to use or distribute such work. The ACLU’s brief argues that this would impermissibly burden or restrict rights at the heart of the First Amendment, including the right to speak freely about government work and the right to petition.