Is data speech?

Author:Bambauer, Jane
Position:Continuation of III. The Right to Create Knowledge through Conclusion, with footnotes, p. 87-120
  1. The Negative Right to Create Knowledge

    The negative right to create knowledge ensures that the state will not interfere unduly with its constituents' learning. This is not an entirely new concept for courts or for scholars, but the varied instantiations of a right to knowledge have been developed in the abstract and through unusual fact patterns.

    Courts have already had occasion to interpret "speech" expansively so that it encompasses the right to receive or access information. (132) The impetus for doing so is plain: free speech will have little value if the government has substantial influence over the ideas and facts that speakers are permitted to consider. At a higher level of generality, the First Amendment safeguards the freedom of thought. The Supreme Court recognized this right in Stanley v. Georgia, when it disallowed enforcement of an obscenity ban, deciding that Georgia "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." (133) Freedom of thought is an old and uniquely American liberty. Samuel Adams, celebrating the signing of the Declaration of Independence, commented: "[F]reedom of thought and the right of private judgment, in matters of conscience ... direct their course to this happy country as their last asylum." (134)

    In 2002, the Supreme Court reaffirmed this sentiment, stating that "[t]he right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." (135) But doesn't this have the order reversed? Thought is almost always a precursor to utterances, art, and other forms of expression. And, although a subset of thoughts is inspired by the speech of others, many thoughts are not. They are either the product of original ideas or first-time observations of the world.

    While courts have been slow to flesh out the right to free thought, constitutional law scholars have laid a good deal of groundwork to provide a theoretical justification for deriving a freedom of thought from the freedom of speech. (136) Seana Shiffrin has done a particularly nice job articulating a thinker-centered theory for the First Amendment, (137) so I borrow heavily from her work to operationalize the right to create knowledge.

    For Shiffrin, the First Amendment is called into service when a statute, regulation, court decision, or lawmaking activity (1) on its face exhibits a design to "ban or attempt to ban the free development and operation of a person's mind or those activities or materials necessary for its free development and operation"; (2) has the effect of interfering too greatly with the free development and operation of a person's mind; or (3) has a rationale which, even if not overtly designed to conflict with the free development of a person's mind, is nevertheless unacceptably inconsistent with that right. (138)

    The right to create knowledge ought to follow the same framework, but with a narrower focus on the uninhibited acquisition of knowledge. The "free development and operation of a person's mind" has nearly infinite range. Public schools, by selecting what to teach and what not to teach, might bar other options the student would otherwise have to develop her mind. But a school's curriculum does not bar the student's opportunity to acquire specific pieces of knowledge that the student can acquire elsewhere. In short, the right to create knowledge promises freedom from intentional or excessive government restraints on learning something new.

    This framework avoids the need to define the nature of "speech." Instead, the framework focuses on the nature of the state action. It asks what purpose a regulation seeks to serve and how the regulation operates in practice. The previously vexing scope question is much more manageable when the analysis centers on the regulation rather than the object of the regulation. (139)

    A purpose-driven test lines up with Elena Kagan's insight that the Court's recognition of speech interests tracks an often-implicit search for the inappropriate motives of lawmakers. (140) However, under the framework, a regulation promulgated with pure motives--motives unrelated to the restriction of knowledge creation--can nevertheless trigger scrutiny if the practical effect of the law causes an unreasonable hindrance to free inquiry.

    Although First Amendment scholars tend to overlook purposive analyses of speech, they are not unprecedented. (141) In United States v. O'Brien, the famous case about draft card burning, the Supreme Court set out the constitutional test for the regulation of an act that it had already found to have enough semantic content to be a form of speech. (142) A regulation could survive scrutiny only "[(1)] if it furthers an important or substantial governmental interest; [(2)] if the governmental interest is unrelated to the suppression of free expression; and [(3)] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (143)

    John Hart Ely helpfully explained a few years later that the rule is "incomplete"; a regulation that does not satisfy element (2), because it intentionally interferes with speech, may still survive constitutional scrutiny, but must undergo a different and more exacting scrutiny. (144) So long as free thought is included under the umbrella of free expression, Shiffrin's scheme tracks the O'Brien rule quite nicely, perhaps even conservatively.

    The framework also supplies manageable limiting principles to the First Amendment's protection of knowledge. Not every regulation affecting knowledge will draw scrutiny; plenty of laws are inimical to a person's ability to learn new things without having a direct purpose to obstruct knowledge. (145) For example, the prohibition of theft will prevent a thief from learning the content of a book that he may plan to steal, but the purpose of the law is to enforce tangible property rights, not to inhibit the knowledge of thieves.

    The thinker-based approach to speech has had a sleepy arrival to First Amendment discourse. Our government, quite fortunately, is not often in the business of overtly manipulating thought. However, the right to knowledge creation has obvious application to the modern data privacy debate. At the beginning of this exploration, the automated generation of data appeared to be a close case for speech. Though the humming of servers and the shuttering of cameras may share superficial similarities with conduct, a motive analysis reveals very clearly on which side of the speech line data privacy laws must fall. Data privacy laws are purposefully designed to interfere with somebody's (or some company' s) knowledge. (146)

    A law prohibiting the creation, maintenance, or distribution of digital information attempts to achieve its social goals by limiting the accumulation of knowledge. Data privacy laws strive to give individuals the power to decide who does and does not get to learn about them. (147) As principled as these restrictions may be, they must draw scrutiny if the First Amendment is to protect the creation of new knowledge. Any other outcome spirals quickly into special pleading.

    The same can be said for trade secret laws, antihacking statutes, and other information laws established to protect information security and maintain economic incentives. (148) As with data privacy laws, the government may be acting out of the best of intentions, inhibiting certain thoughts that tend to produce bad effects on society. In these cases, the government may regulate thought as a way station, or convenient midway point, to achieve more tangible and legitimate goals. Nevertheless, if freedom of thought has First Amendment protection, the government must justify its programs within the judicial scrutiny that applies to other well-meaning regulations of speech.

    There are, of course, other theories of the First Amendment that do not center on thought. Since no single theory can lay exclusive claim to the First Amendment, the next Subpart analyzes how well the protection of data corresponds with alternative visions for the First Amendment.

  2. Data and First Amendment Objectives

    The objectives of the First Amendment are large and contain multitudes. (149) At times courts have emphasized the centrality of political discourse and have given utterances of political dissent the distinctive title of "core" political speech. (150) At other times, the courts have rebuked the suggestion that political speech receives greater protection than other speech. (151) The objectives put forward by scholars are similarly fractured. The theories break into five nonexclusive categories (152): (1) the marketplace of ideas; (2) the preservation of a public resource; (3) deliberative democracy (and, particularly, countermajoritarian expression); (4) a check on state power; and (5) self-determination. The expressive nature of data is quite consistent with the first four objectives, and the fifth poses some interesting questions.

    1. Marketplace of ideas and public good theories

      Proponents of the marketplace of ideas see speech as an open exchange that allows bad ideas to be bested by sounder ones. (153) The public good theory is closely related. It posits that the benefits of speech are indirect (society's gradual accumulation of knowledge and rejection of bad ideas) while its harms are direct (insult, or reputational harms), so speech needs extra protection from shortsighted regulations. (154) The First Amendment supports both of these goals when it limits the state from creating laws that might distort the free competition for the minds of Americans. Wrongheaded as these theories may be (the marketplace has received much just criticism), (155) they inarguably have some claim to the First Amendment's original intent. (156)

      The marketplace of ideas and public good theories dovetail with the right of knowledge creation...

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