Late last week, I finally sent my latest article out to the law reviews. It’s called “Intellectual Privacy,” and it’s about the ways that certain kinds of privacy protections advance, rather than inhibit, First Amendment values. I’m really excited about the project, which I believe has something useful to say about both a number of recent legal issues (involving the War on Terror and also the War on Pornography) as well as our understandings of First Amendment theory. I’m hoping to post it on SSRN shortly, but in the meantime, here’s the abstract:
The use of information about intellectual activity has become central to a wide variety of modern legal problems. In this paper, I offer a theory of intellectual privacy, the critically-important interest lurking beneath the surface of these disputes. Intellectual privacy refers to the zone of protection necessary for free thought and cognition in which individuals can make up their minds about a wide variety of issues both important and trivial. Unlike many other notions of privacy, which are in tension with free speech, intellectual privacy safeguards critical First Amendment values. First, I show how intellectual privacy has been underappreciated in a number of contemporary disputes, including warrantless wiretapping and data mining by government, private-sector uses of personal information relating to intellectual activity, and the introduction of reading habits as evidence in criminal trials. Second, I present a theory of intellectual privacy having four elements – the freedom of thought and belief, spatial privacy, the right of intellectual exploration, and the confidentiality of communications. Third, I show how and why intellectual privacy should be an essential part of our First Amendment theory, and suggest some ways in which it could be better incorporated into both constitutional doctrine and the fabric of our legal culture more generally.