Freedom from Thought

• Publication year: 2015

Freedom from Thought

Jane Bambauer

FREEDOM FROM THOUGHT

Jane Bambauer^*

April Salazar was thrilled to be pregnant. Shortly after learning the good news, she created an account with a pregnancy website so that she would receive email updates about the development of her fetus and advice for pregnancy health.¹ By the time Salazar made the devastating decision to terminate her pregnancy (the fetus had a fatal defect), the pregnancy website had apparently sold Salazar's due date and contact information to Enfamil, a producer of infant formula.² Months later, when Enfamil sent Salazar a box of infant formula marked with the poignant phrase "You're almost there!," the experience lurched Salazar back into the personal hell of a lost pregnancy.³

Salazar's story is just one poignant example of inept promotions and tactless services reminding consumers about something unpleasant.⁴ Some users of Google services resent learning that their true tastes in music or reading material are pedestrian, or even crude.⁵ Still others have had an unpleasant experience learning something intimate about their family members through promotional materials, such as the (possibly apocryphal⁶ ) example of a

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father who learned that his teenaged daughter was pregnant when Target accurately predicted her pregnancy and sent coupons for baby formula.⁷ These stories help respond to criticism that privacy protects amorphous and unspecific interests.⁸ They demonstrate that widespread data tracking and behavioral advertising can cause specific and perfectly understandable distress. And they share very little with a skeptic's conception of privacy as a shroud for misbehavior and social fraud.⁹

The privacy harm that Salazar experienced does not track the typical course of privacy harm. Salazar's pain did not stem from the lost control of her personal information, nor did it stem from negative consequences that could result when friends, employers, or the government discover something embarrassing. It did not even stem from the indignity of being treated like a commodity by the pregnancy website (although this was a predicate step).¹⁰ The direct cause of Salazar's injury was information that she, herself, received. The box of Enfamil reminded Salazar that if she had carried her pregnancy to term, she would be giving birth soon, and this unwelcome message prompted a predictable series of distressing thoughts and memories.¹¹

Salazar's harm came from self-knowledge,¹² and it is not unique. Although self-reflection and understanding usually improves lives, it can disrupt our efforts to define ourselves or manage our internal monologues.¹³ These psychic disruptions range from trivial revelations about workplace productivity to profound revelations of paternity. Sometimes new information disrupts conscious attempts to avoid thought, as when a cancer patient avoids learning

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details about a prognosis,¹⁴ or when the new divorcee avoids learning information about his ex.¹⁵ Other times, unwanted information can seep into consciousness without any preexisting plan to avoid it, as when evidence of unanticipated health risks are returned to research participants,¹⁶ or when once-buried family secrets rise from the grave.¹⁷ In all cases, though, the new information conflicts with the recipient's self-image and causes distress. As a result, the information cannot be ignored or easily dislodged from memory by the listener.

This short Essay explores when ignorance can be supported or even coerced by law, and when it cannot. Freedom from thought is a particularly intriguing topic for me for two distinct reasons.

First, freedom from thought may be a promising form of privacy and dignity rights. Although self-definition is frequently listed in the long list of interests encompassed by the concept of privacy,¹⁸ the difficult task of managing knowledge about ourselves has not received sufficient appreciation.¹⁹ Privacy scholars and lawmakers focus principally on a subject's loss of control when information about him is discovered by second parties or disclosed to third parties. The trouble with these forms of privacy, however, is that they stay in inescapable tension with the interests of those other parties who have something to gain by learning more about the subject. But the tension with second and third party interests does not necessarily afflict the

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topic of this Essay—the interest in self-ignorance. If a person sets out to avoid learning something about herself, another individual's decision to tell that person what she sought to avoid may be entirely wasteful. In at least some cases, the listener is put in a worse position and the speaker gains nothing (discounting whatever utility the speaker may enjoy from bursting the listener's bubble). Therefore, law may be able to incisively find and treat areas of particular vulnerability to create zones where a person should be left alone without running into significant free speech problems.

The second reason freedom from thought holds special intrigue for me is that it presents a challenge to the assumptions I typically carry from project to project—that more knowledge is better.²⁰ I suspect all readers can imagine or remember circumstances in which learning something related to their lives would cause more harm than good. These circumstances contradict the premise of much First Amendment theorizing that prizes the messy quest for truth. Thus, when the government does act to preserve ignorance, the free speech implications are particularly interesting.

This Essay will borrow some basic free speech principles from the work of Eugene Volokh and James Grimmelmann. Part I will describe the analytical model used throughout the Essay, which depends on the willingness of the speaker to provide a message and the listener to receive it. Parts II through IV will apply the model to three categories of potential freedom-from-thought lawmaking. The first category involves a willing speaker and an unwilling listener and will explore what the government can do to support the listener's preferences. The second category considers circumstances in which the government may want to keep a listener in ignorance even though both the speaker and listener prefer to transfer information. The third category considers circumstances in which neither the speaker nor listener wish to transfer information, but the government nevertheless compels information transfer. Together, these three explorations cover the field of government responses when either the listener or the government itself perceives a need for ignorance.

In the end, although freedom from thought has much to offer to the development of privacy and dignitary rights, interests in self-ignorance are better handled through norms than through law. Like other forms of privacy,

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First Amendment commitments are likely to frustrate legal efforts to support or coerce self-ignorance. If a speaker wishes to disclose information, the government is unlikely to be able to interfere with that disclosure unless the speaker's interests are demonstrably weak.²¹ However, when both the speaker and the listener prefer silence, government compulsion of information disclosure will offend privacy and First Amendment principles alike.²²

I. The Speaker-Listener Hierarchy in First Amendment Law

Before jumping into the clash between free speech rights and freedom from thought, I would like to outline the First Amendment rules I will use to predict how courts will respond. The two most common approaches to First Amendment analysis are woefully inadequate for discrete projects like this one. At one extreme lives the general proposition that all content-based restrictions on speech are constitutionally suspect and will undergo exacting strict scrutiny.²³ This principle is accurate in a very general sense, but it is far too simplistic to be useful here. It cannot account for a good deal of nuance that exists both in free speech case law and in the wide range of laws that are generally accepted without First Amendment challengers.²⁴ At the other extreme are analyses that start from scratch and ask how first principles should guide courts.²⁵ This approach has too much nuance to provide practical answers for this short study.

So, I will use two relevant speech theories put forward by Eugene Volokh and James Grimmelmann that inhabit the middle range between clear-but-misleading concrete rules and nuanced-but-impractical abstract principles. Both theories start with the presumption that communications between willing speakers and willing listeners have the greatest constitutional value, and each offers a means of addressing the legal ambiguities when willing speakers wish to communicate with unwilling listeners.

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From Volokh, I borrow the distinction between one-to-one and one-to-many communications.²⁶ Speech addressed to an unwilling listener does not have as strong a claim to constitutional protection if the unwilling speaker is the only recipient of the message.²⁷ This is a corollary to the basic presumption that the willing-speaker, willing-listener combination has the greatest value and receives the most constitutional protection. If a speaker communicates to many people at the same time, some of whom may be willing listeners, that communication will receive more protection than a communication directed to only one, unwilling listener.²⁸ To be sure, one-to-one communications with unwilling listeners must receive some constitutional protection. A political candidate will have an interest in calling or leaving literature with listeners who ex ante might identify themselves as uninterested in the message, and preserving this opportunity for the speaker to persuade is an important First Amendment goal.²⁹ But the government will have more leeway, and attract less scrutiny, if it attempts to protect an unwilling listener from messages that are directed exclusively at him...