Intellectual privacy

Texas Law Review

Volumn 87, Issue 2, 2008, Pages 387-445

  Richards, Neil M ^a  

^a WASHINGTON UNIVERSITY   (United States)

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EID: 59249098571     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (415)

1. E.g., Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. REV. 1, 50 (2004).
2. See Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. REV. 1149, 1161-63 (2005) (collecting examples of First Amendment scholarly critiques of data privacy).
3. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 527-28 (2001);
4. Fla. Star v. B.J.F., 491 U.S. 524, 541 (1989);
5. Smith v. Daily Mail Publ'g, 443 U.S. 97, 103-04 (1979);
6. Okla. Publ'g Corp. v. Okla. County Dist. Court, 430 U.S. 308, 311-12 (1977);
7. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494-95 (1975);
8. Time, Inc. v. Hill, 385 U.S. 374, 394 (1967) (all relying on the First Amendment to reject privacy-based challenges to the publication of personal information).
9. See, e.g., Palko v. Connecticut, 302 U.S. 319, 327 (1937) ("[Freedom of thought] is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal.").
10. See Nicholas Carr, Is Google Making Us Stupid?, ATLANTIC, July-Aug. 2008, at 56, 57 ("[T]he Net is becoming a universal medium, the conduit for most of the information that flows through [the author's] eyes and ears and into [his] mind.").
11. ROBERT O'HARROW, JR., NO PLACE TO HIDE 214-46 (2005).
12. IAN AYRES, SUPER CRUNCHERS: WHY THINKING-BY-NUMBERS IS THE NEW WAY TO BE SMART 10 (2007).
13. See DANIEL J. SOLOVE, THE DIGITAL PERSON 202-03 (2005) (discussing the varying requirements that the government must meet in order to obtain warrants, grand jury subpoenas, and court orders).
14. See Neil M. Richards, The Information Privacy Law Project, 94 GEO. L.J. 1087, 1117-19 (2006) (essay) (collecting examples).
15. See infra Part III.
16. E.g., Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 STAN. L. REV. 1049, 1051 (2000) ("[B]roader information privacy rules are not easily defensible under existing free speech law.").
17. Joseph Menn & Chris Gaither, U.S. Obtains Internet Users' Search Records, L.A. TIMES, Jan. 20, 2006, at Al.
18. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at Al.
19. Rob Hof, Google Logs New Data Privacy Policy, BUSINESSWEEK. COM, Mar. 14, 2007, http://www.businessweek.com/the-thread/techbeat/ archives/2007/03/google-logs-new.html; Ellen Nakashima, AOL Takes Down Site With Users' Search Data, WASH. POST, Aug. 8, 2006, at D1.
20. United States v. Curtin, 489 F.3d 935, 939-40 (9th Cir. 2007);
21. see infra notes 305-316 and accompanying text.
22. See infra Part IV.
23. See, e.g., Marc Jonathan Blitz, Constitutional Safeguards for Silent Experiments in Living: Libraries, the Right to Read, and a First Amendment Theory for an Unaccompanied Right to Receive Information, 1A UMKC L. REV. 799, 802 (2006) (defending the First Amendment right to receive information and ideas in the context of libraries); Julie E. Cohen, DRM and Privacy, 18 BERKELEY TECH. L.J. 575, 575 (2003) [hereinafter Cohen, DRM and Privacy] (discussing how digital-rights- management technologies enable greater control over access to digital files while also implicating the privacy interests of users of information goods); Julie E. Cohen, A Right to Read Anonymously: A Closer Look at "Copyright Management" in Cyberspace, 28 CONN. L. REV. 981, 981-82 (1996) [hereinafter Cohen, Right to Read] (examining digital monitoring of individual reading habits for purposes of "copyright management," and how this cyberspace monitoring affects individuals' freedom to form their thoughts in privacy); Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112, 114-15 (2007) ("Government information gathering... can intrude on a significant amount of First Amendment activity.").
24. See generally J.B. BURY, A HISTORY OF FREEDOM OF THOUGHT (Echo Library 2006) (1913) (providing a theoretical account of the historical development of freedom of thought in the Western tradition).
25. DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS, 1870-1920, at 2 (1999). See generally MICHAEL KENT CURTIS, FREE SPEECH, "THE PEOPLE'S DARLING PRIVILEGE" (2001) (providing a detailed account of nineteenth-century free speech debates on issues such as the Sedition Act and slavery).
26. See, e.g., G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America, 95 MICH. L. REV. 299, 313 (1996) (arguing that the cases interpreting the Espionage Act of 1917 "served to supply First Amendment jurisprudence with its first modern set of theoretical apologetics").
27. E.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
28. E.g., Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
29. E.g., Masses Publ'g Co. v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917), rev'd, 246 F. 24 (2d Cir. 1917).
30. ZECHARIAH CHAFEE, FREEDOM of SPEECH (1920).
31. E.g., Schenck v. United States, 249 U.S. 47, 52 (1919).
32. E.g., Near v. Minnesota, 283 U.S. 697, 713 (1931).
33. E.g., Miller v. California, 413 U.S. 15, 23 (1973).
34. E.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 283 (1964).
35. Id. at 269.
36. Id. at 270.
37. See Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1250 (1995) (positing that the doctrinal confusion surrounding free speech cases stems from mistaken theoretical understandings of the purpose of protecting speech).
38. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1785 (2004) ("Prescriptive theories abound, but descriptive or explanatory accounts of the existing coverage of the First Amendment are noticeably unsatisfactory.").
39. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 CAL. L. REV. 2355, 2356 (2000). There is a third theory-autonomy-that is almost as well received and that I take up in the next section.
40. E.g., JOHN STUART MILL, ON LIBERTY 53 (Stefan Colli ed., Cambridge Univ. Press 1989) (1859) (highlighting the indispensability of "freedom of the expression of opinion" on the ground that "since prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied").
41. E.g., Abrams v. United States, 250 U.S. 616, 624-31 (1919) (Holmes, J., dissenting).
42. Id. at 630.
43. See Shapero v. Ky. Bar Ass'n, 486 U.S. 466, 483 (1988) (O'Connor, J., dissenting) (heralding Holmes's "marketplace of ideas" formulation as "a metaphor that has become almost as familiar as the principle that it sought to justify").
44. Abrams, 250 U.S. at 623-24.
45. Id. at 630 (Holmes, J., dissenting) (emphasis added).
46. See Vincent Blasi, Learned Hand and the Self-Government Theory of the First Amendment: Masses Publishing Co. v. Patten, 61 U. COLO. L. REV. 1, 23 (1990) (explaining Holmes's view that "government cannot be given the authority to regulate in the name of truth" because what is viewed as true will change in a "changing world"). See generally Oliver Wendell Holmes, Jr., Natural Law, 32 HARV. L. REV. 40 (1918).
47. Abrams, 250 U.S. at 630 (Holmes, J., dissenting).
48. Id.
49. For further discussion of Holmes's influence on both jurisprudence and theory, see RABBAN, supra note 19, at 343; CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 24-25 (1993);
50. HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 135 (1988);
51. Ruth Gavison, Holmes's Heritage: Living Greatly in the Law, 78 B.U. L. REV. 843, 846 (1998);
52. and Post, supra note 33, at 2356.
53. See infra subpart II(A).
54. Abrams, 250 U.S. at 630 (Holmes, J., dissenting).
55. Id. at 631.
56. See, e.g., RABBAN, supra note 19, at 356 ("Brandeis...developed a judicial construction of the First Amendment that emphasized the crucial function of free speech in democratic governance.").
57. See, e.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 93-94 (1948) ("[T]he principle of the freedom of speech is derived, not from some supposed 'Natural Right,' but from the necessities of self-government by universal suffrage....").
58. 274 U.S. 357(1927).
59. Id. at 375 (Brandeis, J., concurring).
60. E.g., Schaefer v. United States, 251 U.S. 466, 495 (1920) (Brandeis, J., dissenting).
61. 277 U.S. 438 (1928).
62. Id. at 465-66.
63. Id. at 478 (Brandeis, J., dissenting).
64. For examples of Meiklejohn on self-governance, see MEIKLEJOHN, supra note 48, at 93-94, and ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE (1960).
65. MEIKLEJOHN, supra note 48, at 22-27.
66. Id. at 25.
67. For examples of this, see Gregory P. Magarian, Substantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech, 90 MINN. L. REV. 247, 254 n. 20 (2005).
68. Compare MEIKLEJOHN, supra note 55, at 78-79 (reflecting that freedom of political discussion is necessary for self-government but that nonpolitical speech is outside the scope of necessary protection), with Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) ("The final end of the State was to make men free to develop their [minds].... [L]iberty [is valued] both as an end and as a means.").
69. For some examples of the widespread and lasting influence of Meiklejohn's theory of the First Amendment, see OWEN M. FISS, THE IRONY OF FREE SPEECH 2 (1996);
70. KALVEN, supra note 43, at 67; Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26 (1971);
71. and Cass R. Sunstein, Government Control of Information, 74 CAL. L. REV. 889, 889 (1986).
72. See Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 255 ("The First Amendment does not protect a 'freedom to speak.' It protects the freedom of those activities of thought and communication by which we 'govern.' It is concerned, not with a private right, but with a public power, a governmental responsibility.").
73. One example of this conception of self-governance theory can be seen in id. at 256. Meiklejohn writes: "[T]he First Amendment, as seen in its constitutional setting, forbids Congress to abridge the freedom of a citizen's speech, press, peaceable assembly, or petition, whenever those activities are utilized for the governing of the nation." Id.
74. See A Survey of the Extent to Which the Rights Guaranteed by the First Amendment Are Being Respected and Enforced in the Various Government Loyalty-Security Programs: Hearings Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 84th Cong. 5 (1955) (statement of Alexander Meiklejohn, Former President, Amherst College, Former Chairman, University of Wisconsin Experimental College) ("[W]hen men govern themselves... unwise ideas must have a hearing as well as wise ones, dangerous ideas as well as safe, un-American as well as American.");
75. see also MEIKLEJOHN, supra note 48, at 27 ("To be afraid of ideas, any idea, is to be unfit for self- government"); Meiklejohn, supra note 61, at 256 ("[I]n addition to speech, press, assembly, and petition,... there are many forms of thought and expression... from which the voter derives the knowledge, intelligence, sensitivity to human values [and] the capacity for sane and objective judgment which... a ballot should express.... These, too, must suffer no abridgment of their freedom.").
76. MEIKLEJOHN, supra note 48, at 25.
77. See id. at 45-46 ("The First Amendment was not written primarily for the protection of those intellectual aristocrats who pursue knowledge solely for the fun of the game.... It was written to clear the way for thinking which serves the general welfare.").
78. For some historical evidence suggesting that Justice Oliver Wendell Holmes developed his marketplace theory of the First Amendment in response to the "Red Scare" of 1919-1920 and the government's overreaction to industrial unrest, see RABBAN, supra note 19, at 350-52.
79. White, supra note 20, at 318-19, 344-49.
80. See generally Brandenburg v. Ohio, 395 U.S. 444 (1969).
81. See generally Miller v. California, 413 U.S. 15 (1973).
82. See generally Cohen v. California, 403 U.S. 15 (1971).
83. See generally N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964);
84. LEE C. BOLLINGER, IMAGES OF A FREE PRESS (1991);
85. LUCAS A. POWE, JR., THE FOURTH ESTATE AND THE CONSTITUTION (1991).
86. Lee Bollinger refers to this conception as the "fortress model" of the First Amendment. For a discussion, see LEE C. BOLLINGER, THE TOLERANT SOCIETY 76-103 (1986).
87. See Post, supra note 33, at 2363-69 (categorizing First Amendment theory as focused either on the search for truth in a marketplace of ideas or on self-government rationales).
88. Id. at 2356.
89. Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, I, dissenting).
90. For examples of such scholarly commentary, see Marc Jonathan Blitz, Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World That Tracks Image and Identity, 82 TEXAS L. REV. 1349, 1366-67 (2004);
91. Solove, supra note 6, at 1137-38; Daniel J. Solove, Privacy and Power: Information Privacy Law and Metaphors for Privacy, 53 STAN. L. REV. 1393, 1394 n. 2 (2001);
92. and Merrick D. Bernstein, Note, "Intimate Details": A Troubling New Fourth Amendment Standard for Government Surveillance Techniques, 46 DUKE L.J. 575, 577 n. 12 (1996).
93. Richards, supra note 9, at 1117.
94. See Boyd v. United States, 116 U.S. 616, 630 (1886) (holding that the Fourth and Fifth Amendments precluded a district court from requiring a defendant to produce an invoice of merchandise);
95. see also KEN I. KERSCH, CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW 31-38 (2004);
96. William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1049-54 (1995);
97. William J. Stuntz, The Substantive Origins of Criminal Procedure, 105 YALE L.J. 393, 419-33 (1995) [hereinafter Stuntz, Substantive Origins] (all discussing Boyd and the Fourth and Fifth Amendments during the Lochner Era).
98. Stuntz, Substantive Origins, supra note 78, at 430.
99. See, e.g., Smith v. Maryland, 442 U.S. 735, 745-46 (1979) (holding that telephone call records kept by telephone companies are not protected by the Fourth Amendment); United States v. Miller, 425 U.S. 435, 444-45 (1976) (holding that financial records kept by accountants are not protected by the Fourth Amendment).
100. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 850-52 (2004).
101. Solove, supra note 17, at 116-17.
102. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 213-14(1890).
103. Id.
104. Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEO. L.J. 123, 154 (2007).
105. For an early case grappling with this tension, see Corliss v. E.W. Walker Co., 57 F. 434, 435 (D. Mass. 1893).
106. See id. at 279. In Sullivan, the Court rejected a rule that would have insulated libel laws from constitutional challenge so long as they provided for truth as a defense. Id. The Court reasoned that allowing truth as a defense would "not mean that only false speech will be deterred" and would create an unacceptable risk that "would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and is in fact true, because of doubt whether it can be proved in court." Id.
107. See supra note 3 and accompanying text.
108. See infra notes 172-176 and accompanying text.
109. See, e.g., Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42 (1995);
110. Watchtower Bible & Tract Soc'y v. Vill. of Stratton, 536 U.S. 150, 166-67 (2002);
111. Talley v. California, 362 U.S. 60, 64 (1960) (all affirming that anonymous speech is entitled to First Amendment protection because anonymity is often particularly important to speakers espousing unpopular political views). See generally David W. Ogden & Joel A. Nichols, The Right to Anonymity Under the First Amendment, FED. LAW., Mar.-Apr. 2002, at 44, 44 (arguing that even content-neutral bans on anonymous speech should be subjected to strict scrutiny because their inevitable effect is to disproportionately deter the most unpopular forms of expression). Another example is expressive-association doctrine, in which the anonymity of members of political organizations like the NAACP has been protected from state scrutiny because the expressive mission of the organization would be hampered by the harassment of members were their identities to become public. See, e.g., NAACP v. Alabama, 357 U.S. 449, 462 (1958) ("Inviolability of privacy in group associations may be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.").
112. E.g., Stanley v. Georgia, 394 U.S. 557, 564-65 (1969) ("[The] right to receive information and ideas... is fundamental to our free society.... [A]lso fundamental is the right to be free... from unwanted governmental intrusions into one's privacy.... If the First Amendment means anything, it means that a State has no... power to control men's minds.").
113. See, e.g., Osborne v. Ohio, 495 U.S. 103, 108 (1990);
114. United States v. 12 200-Foot Reels of Super 8mm Film, 413 U.S. 123, 126 (1973);
115. United States v. Reidel, 402 U.S. 351, 356 (1971) (all declining to extend Stanley to the importation or sale of obscene materials).
116. See, e.g., DANIEL J. SOLOVE, THE FUTURE OF REPUTATION 132 (2007);
117. C. Edwin Baker, Autonomy and Information Privacy, or Gossip: The Central Meaning of the First Amendment, 21 SOC. PHIL. & PUB. POL'Y 215, 215 (2004);
118. Peter B. Edelman, Free Press v. Privacy: Haunted by the Ghost of Justice Black, 68 TEXAS L. REV. 1195, 1196 (1990);
119. Harry Kalven, Jr., Privacy in Tort Law: Were Warren and Brandeis Wrong?, 31 LAW & CONTEMP. PROBS. 326, 327 (1966);
120. Daniel J. Solove, The Virtues of Knowing Less, 53 DUKE L.J. 967, 981-82 (2003);
121. Volokh, supra note 11, at 1050-51;
122. Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort, 68 CORNELL L. REV. 291, 293 (1983) (all positing or acknowledging a basic tension between First Amendment values and the right to privacy). For a few examples of exceptions to this trend of positing privacy in tension with free speech, see Richards, supra note 2, at 1151;
123. Julie E. Cohen, Examined Lives: Information Privacy and the Subject as Object, 52 STAN. L. REV. 1373, 1426 (2000);
124. and Sean M. Scott, The Hidden First Amendment Virtues of Privacy, 71 WASH. L. REV. 683, 687 (1996).
125. ACLU v. NSA, 493 F.3d 644, 657 (6th Cir. 2007).
126. Id. at 658 n. 15;
127. see also id. at 660 n. 20 (suggesting that surveillance can never offend the First Amendment).
128. See, e.g., BOLLINGER, supra note 72, at 3 (explaining that "highly subversive and socially harmful speech activity is protected against government regulation" in the United States while "[n]o other society permits this kind of speech activity to nearly the same degree").
129. E.g., DAVID BRIN, THE TRANSPARENT SOCIETY: WILL TECHNOLOGY FORCE US TO CHOOSE BETWEEN PRIVACY AND FREEDOM? (1998);
130. see also Declan McCullagh, Database Nation: The Upside of "Zero Privacy," REASON MAG., June 2004, at 26, 26 ("That view was summed up with cynical certitude by Sun Microsystems CEO Scott McNealy. 'You have zero privacy anyway,' he said a few years ago. 'Get over it.'").
131. See generally, e.g., JEREMY BENTHAM, PANOPTICON (1787);
132. RAY BRADBURY, FAHRENHEIT 451 (1953);
133. GEORGE ORWELL, 1984 (1949).
134. See SOLOVE, supra note 8, at 19 ("Journalists, politicians, and jurists often describe the problem created by databases with the metaphor of Big Brother-the harrowing totalitarian government portrayed in George Orwell's 1984").
135. See, e.g., Julie E. Cohen, Privacy, Visibility, Transparency, and Exposure, 75 U. CHI. L. REV. 181, 186 (2008) ("Surveillance in the panoptic sense thus functions both descriptively and normatively. It does not simply render personal information accessible but rather seeks to render individual behaviors and preferences transparent by conforming them to preexisting frameworks.").
136. See Cohen, supra note 92, at 1426 (hypothesizing that the knowledge of being watched "will constrain, ex ante, the acceptable spectrum of belief and behavior").
137. Cohen, supra note 99, at 192-93; cf. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 201 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977) (illustrating the Panopticon effect by describing a group of prisoners who will never misbehave because they know that they are being watched); MILL, supra note 34, at 9 (indicating that a person's decision to abide by a certain standard of judgment is based on the need to comply with society's rules of conduct).
138. TIMOTHY MACKLEM, INDEPENDENCE of MIND 36 (2006).
139. For a discussion of the importance of imagination to First Amendment values, see generally Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. 1 (2002).
140. See J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L.J. 375, 385 (noting the First Amendment interests in conscience and autonomy).
141. For an example of this, see MEIKLEJOHN, supra note 48, at xiii-xiv. Meiklejohn lays out his "town meeting" metaphor in id. at 22-24.
142. See id. at 105 (claiming that many things done in the name of "freedom" actually serve as "flagrant enslavements of our minds and wills").
143. See, e.g., ROBERT C. POST, C ONSTITUTIONAL DOMAINS (1995) [hereinafter POST, CONSTITUTIONAL DOMAINS]; Robert Post, Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. COLO. L. REV. 1109, 1115-16 (1993);
144. Robert Post, Equality and Autonomy in First Amendment Jurisprudence, 95 MICH. L. REV. 1517, 1523 (1997) (book review).
145. Post, supra note 33, at 2368.
146. ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE 252-55 (Overlook Press 1973) (1959).
147. Id.
148. Id. at 35.
149. JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA 12 (2000). For a similar argument,
150. see also ALAN F. WESTIN, PRIVACY AND FREEDOM 33-34 (1967).
151. This view of the First Amendment comes in a number of variations. For some examples of works arguing that the First Amendment serves the ends of, respectively, "individual selffulfillment," "individual self-realization," "autonomous self-determination," and "autonomy," see C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 991 (1978);
152. Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591, 594 (1982);
153. David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45, 62 (1974);
154. and Thomas Scanlon, A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF. 204, 210-19 (1972). Unfortunately, as the critics of autonomy theory have pointed out, lots of things can promote autonomy and self-realization, such as working as a bartender or trading on the stock market, but not all of those things have much to do with First Amendment values. For such an argument see Bork, supra note 60, at 25.
155. See, e.g., Richards, supra note 113, at 62 (characterizing the "value of free expression" as arising from one's ability to conduct "autonomous self-determination").
156. See Warren & Brandeis, supra note 83, at 196 (lamenting the problem of the press's "idle gossip").
157. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 298-99 (1964);
158. see supra note 71.
159. Cf. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1785 (2004) (describing the complex sociological processes by which our law determines which contexts are thought to implicate the First Amendment).
160. E.g., Palko v. Connecticut, 302 U.S. 319, 327 (1937) ("[Freedom of thought] is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal.");
161. see also Lawrence v. Texas, 539 U.S. 558, 562 (2003) ("Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."); United States v. Ballard, 322 U.S. 78, 86 (1944) ("Freedom of thought, which includes freedom of religious belief, is basic in a society of free men."); Schneiderman v. United States, 320 U.S. 118, 158 (1943) ("[F]reedom of thought... is a fundamental feature of our political institutions.").
162. See, e.g., BENEDICT SPINOZA, THEOLOGICAL-POLITICAL TREATISE (1670), reprinted in FREE PRESS ANTHOLOGY 20, 20 (Theodore Schroeder ed., 1909) (asserting that a government that tries to control the thoughts and speech of its people is tyrannical).
163. John Milton, Areopagitica (1644), reprinted in FREE PRESS ANTHOLOGY, supra note 119, at 16.
164. * 151-52.
165. * 152.
166. JONATHAN SWIFT, GULLIVER'S TRAVELS 124 (Herbert Davis ed., Oxford Univ. Press 1977) (1726).
167. See 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 705-07 (Carolina Academic Press 1987) (1833). In his discussion of freedom of religion, Story also noted: "The rights of conscience are, indeed, beyond the just reach of any human power." Id. at 727.
168. An Act for Establishing Religious Freedom, 12 HENINGS STATUTES AT LARGE 84 (facsimile reprint 1969) (1823).
169. See Letter from Thomas Jefferson to Messrs. Nehemiah Dodge and Others, a Comm. of the Danbury Baptist Ass'n (Jan. 1, 1802), in CHURCH AND STATE IN AMERICAN HISTORY: KEY DOCUMENTS, DECISIONS, AND COMMENTARY FROM THE PAST THREE CENTURIES 74 (John F. Wilson & Donald L. Drakeman eds., 3d ed. 2003) (explaining that a person's religious beliefs are a private matter that should be free from government interference).
170. For some examples of this theme in Jefferson's writings, see Letter from Thomas Jefferson to John Adams (Jan. 22, 1821), in 4 MEMOIR, CORRESPONDENCE, AND MISCELLANIES, FROM THE PAPERS OF THOMAS JEFFERSON 338, 338-39 (Thomas J. Randolph ed., 1830);
171. and Letter from Thomas Jefferson to William G. Munford (June 18, 1799), in THE ESSENTIAL JEFFERSON 193, 195 (Jean M. Yarbrough ed., 2006).
172. James Madison, Memorial and Remonstrance Against Religious Assessments (1785), in 2 THE WRITINGS OF JAMES MADISON 183, 184 (Gaillard Hunt ed., 1901).
173. MILL, supra note 34, at 9.
174. Id. at 8.
175. 98 U.S. 145(1878).
176. Id. at 166.
177. See supra notes 44-54 and accompanying text. For discussion of the foundational influence of the Holmes and Brandeis dissents on First Amendment law, see KALVEN, supra note 43, at 179;
178. RABBAN, supra note 19, at 343;
179. and White, supra note 20, at 321-22.
180. 279 U.S. 644 (1929).
181. Id. at 654-55 (Holmes, J., dissenting).
182. Id. at 478 (Brandeis, J., dissenting).
183. See, e.g., Roe v. Wade, 410 U.S. 113, 152 (1973) (citing Brandeis's dissent in Olmstead as recognizing a constitutional right to privacy);
184. Katz v. United States, 389 U.S. 347, 353 (1967) (concluding that Olmstead is not controlling because of the important privacy interests at stake);
185. Griswold v. Connecticut, 381 U.S. 479, 494 (1965) (Goldberg, J., concurring) (offering Brandeis's dissent in Olmstead as support for recognizing a constitutional right to privacy).
186. 302 U.S. 319(1937).
187. Id. at 327.
188. White, supra note 20, at 330-42;
189. Neil M. Richards, The "Good War," the Jehovah's Witnesses, and the First Amendment, 87 VA. L. REV. 781, 781-82 (2001) (book review).
190. See, e.g., Adler v. Bd. of Educ, 342 U.S. 485, 508 (1952) (Douglas, J., dissenting) ("The Constitution guarantees freedom of thought and expression to everyone in our society."); United States v. Ballard, 322 U.S. 78, 86 (1944) ("Freedom of thought, which includes freedom of religious belief, is basic in a society of free men."); Prince v. Massachusetts, 321 U.S. 158, 164 (1944) (stating that the liberties protected by the First Amendment have a preferred position in the Constitution); Jones v. City of Opelika, 316 U.S. 584, 594 (1942) ("[T]he mind and spirit of man remain forever free, while his actions rest subject to necessary accommodation to the competing needs of his fellows."); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (stating that the freedoms of conscience and belief are absolute).
191. 319 U.S. 624(1943).
192. Id. at 642. Justice Murphy argued further that "[t]he right of freedom of thought and of religion as guaranteed by the Constitution against state action includes both the right to speak freely and the right to refrain from speaking at all...." Id. at 645 (Murphy, J., concurring).
193. See Lawrence v. Texas, 539 U.S. 558, 562 (2003) ("Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.");
194. Ashcroft v. Free Speech Coal, 535 U.S. 234, 253 (2002) ("The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.");
195. Abood v. Detroit Bd. of Educ, 431 U.S. 209, 234-35 (1977) ("[A]t the heart of the First Amendment is the notion that an individual should be free to believe as he will....");
196. Wooley v. Maynard, 430 U.S. 705, 714 (1977) (stating that "individual freedom of mind" is a broad concept, of which the right to speak and refrain from speaking are "complementary components");
197. United States v. Reidel, 402 U.S. 351, 356 (1971) (stating that the freedom to read obscene materials and freedom of thought are independent of whether obscenity is itself protected by the Constitution);
198. Griswold v. Connecticut, 381 U.S. 479, 482 (1965) ("[T]he State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes... freedom of inquiry [and] freedom of thought....");
199. Mapp v. Ohio, 367 U.S. 643, 672-74 (1961) (Harlan, J., dissenting) (arguing that criminalization of the mere knowing possession of obscene material is inconsistent with the freedom of thought protected against state action by the Fourteenth Amendment).
200. Stanley v. Georgia, 394 U.S. 557, 568 (1969).
201. Osborne v. Ohio, 495 U.S. 103, 111 (1990);
202. cf. Free Speech Coal., 535 U.S. at 258 (holding that the government may not make it a crime for one person to possess materials containing sexually explicit depictions that another person had inaccurately marketed, sold, or described as child pornography).
203. Jerry Kang, Information Privacy in Cyberspace Transactions, 50 STAN. L. REV. 1193, 1202 (1998).
204. See, e.g., Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 160 (Wis. 1997) ("The law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded.");
205. Semayne's Case, (1603) 77 Eng. Rep. 194, 195 (K.B.) ("[T]he house of every one is to him as his castle and fortress....").
206. See, e.g., Kyllo v. United States, 533 U.S. 27, 31 (2001) (stating that the right to retreat into one's own home and be free from unreasonable governmental intrusion is at the core of the Fourth Amendment);
207. Wilson v. Layne, 526 U.S. 603, 610, 609-10 (1999) ("The Fourth Amendment embodies [a] centuries-old principle of respect for privacy of the home....").
208. For a similar argument in the context of digital-rights-management technologies, see generally Cohen, DRM and Privacy, supra note 17.
209. Samuel Johnson, The Rambler No. 7 (Apr. 10, 1750), reprinted in 1 THE WORKS OF SAMUEL JOHNSON, L.L.D. 11 (Arthur Murphy ed., Henry G. Bonn 1854).
210. Id.
211. For a broader theory of privacy-as-boundary-setting, see Cohen, supra note 99, at 190-94.
212. See ORWELL, supra note 97.
213. VIRGINIA WOOLF, A ROOM OF ONE'S OWN (Mark Hussey ed., ann. ed. 2005) (1929).
214. Id. at 105.
215. MACKLEM, supra note 102, at 37.
216. BRADBURY, supra note 97, at 84.
217. Id. at 83-85.
218. 336 U.S. 77(1949).
219. Id. at 78, 87.
220. Id. at 97 (Frankfurter, J., concurring).
221. 343 U.S. 451 (1952).
222. Id. at 453, 463.
223. Id. at 467-69 (Douglas, J., dissenting).
224. Id. at 467.
225. 381 U.S. 479 (1965);
226. see also Richards, supra note 9, at 1107 (characterizing Douglas's Griswold opinion as a First Amendment privacy case).
227. Pollack, 343 U.S. at 468 (Douglas, J., dissenting).
228. Id. at 469.
229. Id.
230. Id. at 467 (separate opinion of Frankfurter, J.).
231. See Martin v. Struthers, 319 U.S. 141, 147-49 (1943) (relating the traditional American law of trespass to the constitutional right to choose whether or not to receive literature from a person knocking at one's door).
232. For a discussion of some of these cases, see Franklyn S. Haiman, Speech v. Privacy: Is There a Right Not to Be Spoken To?, 67 Nw. U. L. REV. 153, 157-74 (1972).
233. See also, e.g., FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) ("[I]n the privacy of the home... the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder.");
234. Lehman v. City of Shaker Heights, 418 U.S. 298, 307 (1974) (Douglas, J., concurring) ("While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it.");
235. Rowan v. U.S. Post Office Dep't, 397 U.S. 728, 737 (1970) ("Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit-");
236. Redrup v. New York, 386 U.S. 767, 769 (1967) (holding that pornographic magazine sales cannot be restricted absent a suggestion that they were "so obtrusive as to make it impossible for an unwilling individual to avoid exposure");
237. Breard v. Alexandria, 341 U.S. 622, 645, 641-45 (1951) ("It would be... a misuse of the great guarantees of free speech and free press to use those guarantees to force a community to admit the solicitors of publications to the home premises of its residents.");
238. Kovacs v. Cooper, 336 U.S. 77, 86 (1949) (rejecting a First Amendment challenge to an ordinance that banned the use of loud speakers on city streets, reasoning that without such an ordinance "[t]he unwilling listener...[i]n his home or on the street is practically helpless to escape this interference with his privacy").
239. Martin, 319 U.S. at 147-49.
240. Frisby v. Schultz, 487 U.S. 474, 483-84 (1988).
241. Rowan, 397 U.S. at 738.
242. The phrase was first popularized in ALVIN TOFFLER, FUTURE SHOCK 311 (1970).
243. See supra notes 158-60 and accompanying text.
244. See, e.g., Steven Levy, (Some) Attention Must Be Paid!, NEWSWEEK, Mar. 26, 2006, at 16 (discussing how technologies such as mobile phones and e-mail create distractions that can interfere with tasks requiring contemplation and reflection).
245. Mainstream Mktg. Servs., Inc. v. FTC, 358 F.3d 1228, 1237 (10th Cir. 2004).
246. MACKLEM, supra note 102, at 56.
247. See Stanley v. Georgia, 394 U.S. 557, 562 n. 7 (1969) (citing cases in which the Court expressed reluctance to make nonpublic distribution of obscene materials illegal);
248. see also Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1964) (holding unconstitutional a law requiring addressees to request in writing delivery of mail determined to be communist political propaganda);
249. Thomas v. Collins, 323 U.S. 516, 534 (1945) (stating that a prohibition on speech soliciting union membership was also a restriction on the rights of the workers to hear what the speaker had to say);
250. Martin v. Struthers, 319 U.S. 141, 143 (1943) (stating that First Amendment freedom of speech includes the right to receive literature);
251. Blitz, supra note 17, at 834-41 (contrasting the Court's approach to public parks with its approach to public libraries as forums in which the right to receive information should be protected);
252. Thomas I. Emerson, Legal Foundations of the Right to Know, 1976 WASH. U. L.Q. 1, 3 (citing cases in which the Court has recognized a constitutional right to know).
253. 394 U.S. 557(1969).
254. Id. at 565.
255. Id. at 564.
256. Id. at 565.
257. 381 U.S. 301 (1965).
258. Id. at 305.
259. See, e.g., Tattered Cover, Inc. v. City of Thornton, 44 P. 3d 1044, 1053 (Colo. 2002) ("Search warrants directed to bookstores, demanding information about the reading history of customers, intrude upon the First Amendment rights of customers and bookstores because compelled disclosure of book-buying records threatens to destroy the anonymity upon which many customers depend.").
260. Library-records confidentiality is protected in at least forty-eight states and the District of Columbia. For a catalogue of such statutes, see State Laws on the Confidentiality of Library Records (Apr. 20, 2005), http://www.library.cmu.edu/People/neuhaus/state-laws3.html.
261. Video Privacy Protection Act of 1988, 18 U.S.C. § 2710 (2006).
262. See James Grimmelmann, The Structure of Search Engine Law, 93 IOWA L. REV. 1, 18 (2007) (suggesting that internet users are not protected against dissemination of their search queries by search engines);
263. Geoffrey R. Stone, Revisiting The Patriot Act, CHI. TRIB., July 8, 2005, at 29 (describing the lack of any protection from government viewing of bookstore records).
264. Cohen, Right to Read, supra note 17, at 1029.
265. Cohen, DRM and Privacy, supra note 17, at 578.
266. E.g., Blitz, supra note 17, at 800;
267. see, e.g., Sonia K. Katyal, Privacy vs. Piracy, 7 YALE J.L. & TECH. 222, 318 (2004) (arguing that cyber surveillance compromises anonymous speech).
268. For a more developed discussion of both this problem and the differences between privacy and confidentiality, see generally Richards & Solove, supra note 85.
269. Cohen, supra note 93, at 1426.
270. For historical discussions of the role the postal system has played in the dissemination of information, see RICHARD JOHN, SPREADING THE NEWS 282 (1998), and Anuj Desai, Wiretapping Before the Wires, 60 STAN. L. REV. 553 (2007).
271. See Rosenburger v. Rector of the Univ. of Va., 515 U.S. 819, 835 (1995) (noting that the danger of chilling free expression "is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophical tradition");
272. Griswold v. Connecticut, 381 U.S. 479, 482-83 (1965) ("The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach-indeed the freedom of the entire university community."). For further discussion of the role universities play in the freedom of intellectual exploration, see Paul Horwitz, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, 54 UCLA L. REV. 1497, 1497 (2007), and Post, supra note 33, at 2365.
273. See Blitz, supra note 17, at 837-39 (discussing the role of the ALA in the early twentieth century).
274. Id. at 837-38.
275. EVELYN GELLER, FORBIDDEN BOOKS IN AMERICAN PUBLIC LIBRARIES, 1876-1939: A STUDY IN CULTURAL CHANGE, at xv (1984);
276. WAYNE A. WIEGAND, THE POLITICS OF AN EMERGING PROFESSION: THE AMERICAN LIBRARY ASSOCIATION 1876-1917, at 9-10 (1986).
277. Library Bill of Rights, reprinted in CENSORSHIP AND THE AMERICAN LIBRARY: THE AMERICAN LIBRARY ASSOCIATION'S RESPONSE TO THREATS TO INTELLECTUAL FREEDOM, 1939-1969, at 13-14 (1996).
278. MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM 165-67 (1991);
279. White, supra note 20, at 330-31.
280. See Blitz, supra note 17, at 838, 837-38 (noting the Library Bill of Rights and ALA influences as key elements to public libraries' evolution "from settings where censorship was acceptable into settings where intellectual liberty was paramount").
281. SEE INTELLECTUAL FREEDOM COMM., AM. LIBRARY ASS'N, QUESTIONS AND ANSWERS ON PRIVACY AND CONFIDENTIALITY 1-2 (2006) [hereinafter ALA, QUESTIONS AND aNSWERS], available at http://staging.ala.org/ala/aboutala/offices/oif/statementspols/statementsif/ interpretations /qandaonprivacyandconfidentiality.pdf (describing the ALA Intellectual Freedom Committee's work on "ongoing privacy developments in technology, politics and legislation," including the "implications of September 11 on privacy issues").
282. E.g., AM. LIBRARY ASS'N, INTELLECTUAL FREEDOM MANUAL (7th ed. 2006);
283. ALA, QUESTIONS AND ANSWERS, supra note 206.
284. Am. Library Ass'n, Privacy: An Interpretation of the Library Bill of Rights (June 19, 2002), http://staging.ala.org/ala/aboutala/offices/oif/ statementspols/statementsif/interpretations/priv acy.cfm.
285. Id.
286. Am. Library Ass'n, Resolution on the USA PATRIOT Act and Related Measures that Infringe on the Rights of Library Users (Jan. 20, 2003), http://staging.ala.org/ala/aboutala/offices/oif/statementspols/ifresolutions/ resolutionusa.cfm [hereinafter ALA, PATRIOT Act Resolution]; ALA, Resolution on the Use and Abuse of National Security Letters: On the Need for Legislative Reforms to Assure the Right to Read Free of Government Surveillance (June 27, 2007), http://www.ala.org/ala/aboutala/offices/oif/statementspols/ifresolutions/ nationalsecurityletters.cfrn.
287. 18 U.S.C. § 2511(2006).
288. SEE MODEL RULES OF PROF'L CONDUCT R. 1.18, 1.6, 1.8(b), 1.9(c) (1983) (imposing a variety of duties of confidentiality on lawyers with respect to prospective, current, and former clients).
289. Richards & Solove, supra note 85, at 133-34.
290. *169.
291. SEE DAVID J. SEIPP, THE RIGHT TO PRIVACY IN AMERICAN HISTORY 9 (1978) (citing the British Post Office Act of 1710, 9 Anne cap. X, § 40).
292. Ex parte Jackson, 96 U.S. 727, 733 (1877);
293. see also Desai, supra note 198, at 574-75 (placing Jackson in the broader context of the evolution of antebellum communications-privacy norms).
294. See Richards & Solove, supra note 85, at 142 ("The 'sacredness' of personal correspondence promoted by the postal system's public law regime was buttressed by related private law doctrines protecting the unpublished expressions in letters from unwanted disclosure."); Note, The Right to Privacy in the Nineteenth Century, 94 HARV. L. REV. 1892, 1899 (1981) ("Nineteenth century public opinion regarded the 'sanctity of the mails' as absolute in the same way it esteemed the inviolability of the home.").
295. Note, supra note 217, at 1899 (quoting J. HOLBROOK, TEN YEARS AMONG THE MAIL BAGS, at xviii (1855)).
296. 18 U.S.C. § 2511(1) (2006).
297. Id.
298. See Bartnicki v. Vopper, 532 U.S. 514, 541 (2001) (Rehnquist, C.J., dissenting) (collecting examples).
299. 389 U.S. 347(1967).
300. See id. at 359 (declaring that rights do not vanish when they are "transferred from the setting of a home, an office, or a hotel room to that of a telephone booth").
301. This was the theory of the law of confidential relations, a forerunner of modern fiduciary law, which protected vulnerable parties in information transactions against abuse, including misuse of information for the confidant's gain and disclosure of confidences. Richards & Solove, supra note 85, at 135-37.
302. See id. (discussing the English common law of confidentiality).
303. Richards, supra note 2, at 1195;
304. see Richards & Solove, supra note 85, at 134-35 (describing common law recognition of the attorney-client and spousal evidentiary privileges).
305. Richards, supra note 2, at 1195.
306. See PRISCILLA M. REGAN, LEGISLATING PRIVACY: TECHNOLOGY, SOCIAL VALUES, AND PUBLIC POLICY 46 (1995) (discussing nineteenth-century postal statutes prohibiting the opening of mail); supra note 198 and accompanying text.
307. See supra note 211 and accompanying text.
308. Cf. Paul Gewirtz, Privacy and Speech, 2001 SUP. CT. REV. 139, 165 (arguing that people are best able to express themselves when they do not fear public exposure or being made the subject of gossip).
309. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. III, 82 Stat. 197, 211-23 (codified as amended in scattered sections of 18, 42, and 47 U.S.C.).
310. PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN, OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 202 (1967).
311. See Schauer, supra note 32, at 1768 (arguing that the outermost boundaries of the First Amendment are vague and do not appear to reflect any principled theory of coverage other than mysterious sociological processes of constitutional salience).
312. See Richards, supra note 9, at 1109 (arguing that Justice Douglas "viewed the case as being what we would today consider a First Amendment associational privacy case").
313. Seana Valentine Shiffrin, What Is Really Wrong with Compelled Association?, 99 NW. U. L. REV. 839, 869 (2005).
314. See POST, CONSTITUTIONAL DOMAINS, supra note 107, at 192-93 (theorizing that "responsive democracy," understood as a public culture that cultivates civil and respectful speech and deliberation, "requires the maintenance of healthy and vigorous forms of community life"); Balkin, supra note 1, at 50 ("To protect freedom of speech in the digital age, we will have to reinterpret and refashion both telecommunications policy and intellectual property law to serve the values of freedom of speech, which is to say...with the goals of a democratic culture in mind.").
315. See BOLLINGER, supra note 72, at 243 ("[A] presumption of tolerance, or what I have sometimes referred to as the tolerance ethic... is consistent in a very broad way with the view of the underlying purpose of free speech represented here.").
316. Cf. Vincent Blasi, Free Speech and Good Character: From Milton to Brandeis to the Present, in ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA 60, 62 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002) (extolling the virtues of "a culture that prizes and protects expressive liberty" because such a culture tends to "nurture[] in its members certain character traits such as inquisitiveness, distrust of authority, willingness to take initiative, and the courage to confront evil," which enable those members to make important instrumental contributions to the well-being of a democratic culture).
317. See Rhys Blakely, Google Faces Shareholder Vote Over China, TIMES ONLINE (London), May 10, 2007, http://business. timesonline.co.uk/tol/business/industry-sectors/technology/article1773239.ece.
318. See Peter Swire, The System of Foreign Intelligence Surveillance Law, 72 GEO. WASH. L. REV. 1306, 1333 (2004) (chronicling the expansion of surveillance authority and its legal consequences).
319. Id.;
320. see also O'HARROW, supra note 6, at 214-46 (detailing the increased use by the government of private-sector information-gathering services);
321. Jon D. Michaels, All the President's Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 CAL. L. REV. 901, 908-21 (2008) (documenting the dramatic post-9/11 increase in the executive branch's use of informal agreements to obtain data and information from the private sector).
322. Gregory P. Magadan, The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate, 73 GEO. WASH. L. REV. 101, 128 (2004).
323. For one such proposal, see Solove, supra note 17, at 176.
324. See supra Part II.
325. Solove, supra note 17, at 140-41.
326. Rodney A. Smolla, Freedom of Speech for Libraries and Librarians, 85 LAW LIBR. J. 71, 78 (1993).
327. See supra note 130 and accompanying text.
328. Balkin, supra note 1, at 2.
329. Id. at 3-4.
330. Id. at 50-51.
331. Id.
332. Id. 51-54.
333. For some examples from this line of scholarship, see Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. PA. L. REV. 771, 816 (1999);
334. Roderick M. Hills, Jr., The Constitutional Rights of Private Governments, 78 N.Y.U. L. REV. 144, 184 (2003);
335. Horwitz, supra note 199, at 1497;
336. Mark D. Rosen, The Surprisingly Strong Case for Tailoring Constitutional Principles, 153 U. PA. L. REV. 1513, 1539 (2005);
337. Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 84-86 (1998);
338. and Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L. REV. 1256, 1274(2005).
339. See supra notes 200-210 and accompanying text.
340. See supra notes 190-191 and accompanying text.
341. See Desai, supra note 198, at 568, 568-69 ("The 1792 Post Office Act firmly embedded the concept of communications privacy into law and postal policy. Through the nineteenth century, the law remained in place, and expectations about the role of the post office and the importance of postal privacy developed.").
342. For a contemporaneous discussion of this body of law, see John W. Wade, Tort Liability for Abusive and Insulting Language, 4 VAND. L. REV. 63, 76-81 (1950).
343. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1.
344. See Eric Lichtblau, Two Groups Planning to Sue over Federal Eavesdropping, N.Y. TIMES, Jan. 17, 2006, at A14 (discussing lawsuits planned by the ACLU and the Center for Constitutional Rights to challenge the legality of the TSP).
345. Dan Eggen, Court Will Oversee Wiretap Program, WASH. POST, Jan. 18, 2007, at Al.
346. Dan Eggen, NSA Spying Part of Broader Effort: Intelligence Chief Says Bush Authorized Secret Activities Under One Order, WASH. POST, Aug. 1, 2007, at Al.
347. On August 5, 2007, Congress passed the Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552 (2007), which appears to pave the way for warrantless programs like the TSP in the future. The Act, which lapsed after six months on February 16, 2008, modified FISA to allow for generalized TSP-style warrantless surveillance subject only to "clearly erroneous" review before the FISA court. Id. §§ 105B, 105C(b). For a discussion of this extension of FISA, see Katherine J. Strandburg, Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B.C. L. REV. 741, 753 (2008).
348. Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, sec. 201, § 802, 122 Stat. 2436, 2468-70 (to be codified at 50 U.S.C. 1885a) (granting immunity to electronic-communications service providers that cooperated with intelligence agencies in domestic surveillance after September 11, 2001).
349. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended in scattered sections of 50 U.S.C).
350. Letter from Dep't of Justice to the Leadership of the Senate Select Comm. on Intelligence and House Permanent Select Comm. on Intelligence (Dec. 22, 2005), in Symposium, War, Terrorism, and Torture: Limits on Presidential Power in the 21st Century, 81 IND. L.J. 1360, 1360 (2006);
351. accord John Yoo, The Terrorist Surveillance Program and the Constitution, 14 GEO. MASON L. REV. 565, 566 (2007);
352. Dan Eggen & Walter Pincus, Varied Rationales Muddle Issue of NSA Eavesdropping, WASH. POST, Jan. 27, 2006, at A5.
353. For examples of analysis of the program under FISA and Fourth Amendment law, see Robert Bloom & William J. Dunn, The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment, 15 WM. & MARY BILL RTS. J. 147, 152 (2006);
354. Lawrence Friedman & Renee M. Landers, Domestic Electronic Surveillance and the Constitution, 24 J. MARSHALL J. COMPUTER & INFO. L. 177, 180-86 (2006);
355. Heidi Kitrosser, Congressional Oversight of National Security Activities: Improving Information Funnels, 29 CARDOZO L. REV. 1049, 1049 (2007);
356. John Cary Sims, What NSA Is Doing...and Why It's Illegal, 33 HASTINGS CONST. L.Q. 105, 140 (2006);
357. Recent Developments: The NSA Terrorist Surveillance Program, 43 HARV. J. on LEGIS. 517, 517 (2006);
358. and Debate Between Professor David D. Cole and Professor Ruth Wedgwood, NSA Wiretapping Controversy (Feb. 9, 2006), in 37 CASE W. RES. J. INT'L L. 509, 512 (2006).
359. See, e.g., 18 U.S.C. § 2703 (2006) (stating that the Electronic Communications Privacy Act allows a court to issue an order for disclosure only if a "governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe" the information sought is "relevant and material to an ongoing criminal investigation"); 50 U.S.C. § 1805 (2000) (requiring the government to make a showing of probable cause before a judge can issue an order approving electronic surveillance under FISA); cf. Katz v. United States, 389 U.S. 347, 359 (1967) (reaffirming that the Fourth Amendment requires "a neutral predetermination of the scope of a search").
360. ACLU v. NSA, 493 F.3d 644, 664-65 (6th Cir. 2007).
361. Id. at 661-65.
362. Id. at 657.
363. Rubenfeld, supra note 103, at 10.
364. For statistics to this effect, see LEE RAINIE & JOHN HORRIGAN, PEW INTERNET & AM. LIFE PROJECT, A DECADE OF ADOPTION: HOW THE INTERNET HAS WOVEN ITSELF INTO AMERICAN LIFE (2005), http://www.pewinternet.Org/PPF/r/148/report-display.asp.
365. For information regarding Google's data-collection and retention policies, see Google Privacy Policy, http://www.google.com/intl/en/ privacypolicy.htrnl, and Another Step to Protect User Privacy, Googleblog, http://googleblog.blogspot.com/2008/09/another-step-to-protect-userprivacy.html.
366. *2 (D. Mass. July 21, 2000).
367. For one such example, see Ellen Nakashima, Internet Firm Says It Targeted Ads to Customers' Web-Surfing Habits, WASH. POST, July 25, 2008, at D2 (discussing Embarq's defense of its information-gathering techniques because the company posted a privacy policy and allowed customers to opt out of the service). One study has shown that 93% of major Web sites post such privacy policies. Jeri Clausing, Fate Unclear For F.T.C. 's Privacy Push, N.Y. TIMES, May 22, 2000, at C1.
368. Cf. Katy McLaughlin, For Resourceful Students, the Internet Is a Key to Scholarships, N.Y. TIMES, Mar. 31, 2002, at C8 (explaining that FastWeb.com "does not have to charge fees for its services because it makes money by selling registered users' information to marketing partners").
369. See, e.g., SOLOVE, supra note 92, at 91 (arguing that "the core of the database problem" is "the power inequalities that pervade the world of information transfers between individuals and bureaucracies").
370. For some examples, see Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age, 80 S. CAL. L. REV. 241, 251-54 (2007);
371. Brandon McKelvey, Comment, Financial Institutions' Duty of Confidentiality to Keep Customer's Personal Information Secure from the Threat of Identity Theft, 34 U.C. DAVIS L. REV. 1077, 1113 (2001);
372. and James P. Nehf, Incomparability and the Passive Virtues of Ad Hoc Privacy Policy, 76 U. COLO. L. REV. 1, 42 (2005).
373. But see Stan Karas, Privacy, Identity, Databases, 52 AM. U. L. REV. 393, 399 (2002) (arguing that consumption is an expressive activity).
374. Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 VAND. L. REV. 1609, 1700-01 (1999).
375. O'HARROW, supra note 6, at 6-7;
376. Michaels, supra note 241, at 904.
377. Leslie Cauley, NSA Has Massive Database of Americans' Phone Calls, USA TODAY, May 11, 2006, at 1A; Barton Gellman & Arshad Mohammed, Data on Phone Calls Monitored, WASH. POST, May 12, 2006, at A1.
378. Luke O'Brien, FBI Confirms Contracts with AT&T, Verizon and MCI, WIRED.COM, Mar. 20, 2007, http://blog.wired.com/27bstroke6/ 2007/03/fbLconfirms-co.html.
379. OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION'S USE OF SECTION 215 ORDERS FOR BUSINESS RECORDS 13 (2007) [hereinafter SECTION 215 REVIEW].
380. Arshad Mohammed, Google Refuses Demand for Search Information, WASH. POST, Jan. 20, 2006, at Al.
381. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act § 215, 50 U.S.C. § 1861 (Supp. V 2005).
382. See, e.g., Fair Credit Reporting Act, 15 U.S.C. §§ 1681u, 1681v (2006) (allowing access to various information in a consumer credit report); Electronic Communications Privacy Act, 18 U.S.C. § 2709 (2006) (allowing access to telephone and e-mail information); National Security Act of 1947, 50 U.S.C. § 436 (2000) (allowing the issuance of NSLs in connection with investigations of improper disclosure of classified information by government employees).
383. For examples of the various entities that can be required by NSLs to provide information to the FBI and other investigative agencies, see Right to Financial Privacy Act, 12 U.S.C. § 3414(a)(5)(A) (2006) (financial institutions); Fair Credit Reporting Act, 15 U.S.C. §§ 1681u(b), 1681v (2006) (consumer reporting agencies); Electronic Communications Privacy Act, 18 U.S.C. § 2709(b)(l)-(2) (2006) (wire or electronic service providers); National Security Act of 1947, 50 U.S.C. § 436(a)(3) (2000) (financial agencies and institutions, holding companies, and consumerreporting agencies); and USA PATRIOT Act, 50 U.S.C. § 1861 (Supp. V 2005) (nonspecific). RFPA and ECPA NSLs are subject to the requirement that the FBI certify that "such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States." Right to Financial Privacy Act, 12 U.S.C. § 3414(a)(5)(A); Electronic Communications Privacy Act, 18 U.S.C. § 2709(b)(l)-(2).
384. See SECTION 215 REVIEW, supra note 284, at 17 (reporting that all pure § 215 applications submitted between 2002 and 2005 were approved).
385. See, e.g., 18 U.S.C. § 2709(c)(1) (prohibiting disclosure of NSL requests for telephone records); 50 U.S.C. § 1861(d) (prohibiting disclosure of § 215 requests); cf. 18 U.S.C. § 3511(b) (2006) (allowing the recipient of an NSL to seek judicial review of a nondisclosure order).
386. The American Library Association, for instance, adopted a resolution stating that it considers this and other provisions of the Patriot Act to be "a present danger to the constitutional rights and privacy rights of library users." ALA, PATRIOT Act Resolution, supra note 210;
387. see also Charles Babington, Patriot Act Compromise Clears Way for Senate Vote, WASH. POST, Feb. 10, 2006, at Al (describing compromise efforts to amend § 215 in order to "do better... to protect civil liberties"); Eric Lichtblau, At F.B.I., Frustration Over Limits on an Antiterror Law, N.Y. TIMES, Dec. 11, 2005, at 48 (reporting that the Justice Department had not used § 215 to obtain medical or gun records because of the privacy and civil rights concerns raised by critics of the law).
388. 50 U.S.C. § 1861(a)(3); cf. § 1861(d) (prohibiting disclosure of requests for such material).
389. See OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION'S USE OF NATIONAL SECURITY LETTERS 70 tbl.6.1 (2007) (summarizing possible Intelligence Oversight Board violations triggered by the use of NSLs); John Solomon, FBI Finds It Frequently Overstepped in Collecting Data, WASH. POST, June 14, 2007, at Al (reporting that an FBI internal audit of NSL requests found frequent violations of laws and regulations).
390. See, e.g., Grimmelmann, supra note 192, at 43-44 (discussing the privacy concerns that arise when governments harness the power of search engines to conduct surveillance).
391. See, e.g., Lauren M. Weiner, Comment, "Special" Delivery: Where Do National Security Letters Fit into the Fourth Amendment?, 33 FORDHAM URB. L.J. 1453, 1470 (2006) (explaining that National Security Letters must fit within an exception to the Fourth Amendment warrant requirement if they are to be used for domestic criminal investigations); cf. Solove, supra note 17, at 116-17 (arguing that the First Amendment should serve as a source of criminal procedure rules constraining the government's access to intellectual records).
392. 425 U.S. 435, 443 (1976) (holding that personal financial records kept by the defendant's bank were not protected by the Fourth Amendment).
393. 442 U.S. 735, 745-46 (1979) (holding that telephone call records kept by a telephone company were not protected by the Fourth Amendment).
394. 490 F.3d 455 (6th Cir. 2007), vacated, 532 F.3d 521 (6th Cir. 2008).
395. 490 F.3d at 475-76.
396. See Katz v. United States, 389 U.S. 347, 360, 360-62 (1967) (Harlan, J., concurring).
397. See Kerr, supra note 81, at 858-59 (noting the numerous institutional advantages legislatures possess over courts in balancing competing objectives to create effective rules).
398. ALA, PATRIOT Act Resolution, supra note 210.
399. See SECTION 215 REVIEW, supra note 284, at 77-79 (detailing the various contexts in which § 215 has been employed, but not mentioning libraries).
400. See supra notes 200-21 and accompanying text.
401. 489 F.3d 935 (9th Cir. 2007).
402. Id. at 937-38.
403. See generally 18 U.S.C. § 2423(b) (2006).
404. See generally 18 U.S.C. § 2422(b).
405. Curtin, 489 F.3d at 955-56.
406. Id. at 953. The case was remanded for a new trial because the trial judge had neglected to actually read the stories before he balanced their relevance against their prejudicial value under Federal Rule of Evidence 403. Id. at 955-56.
407. Cf., e.g., United States v. Brand, 467 F.3d 179, 198 n. 18, 199-201 (2d Cir. 2006) (allowing the introduction of child pornography found on defendant's computer to show his predisposition to molest children).
408. Images of child sexual abuse are unprotected by the First Amendment. New York v. Ferber, 458 U.S. 747, 764 (1982). Other depictions of adult-child sexual contact, such as text (like Curtin's stories or Vladimir Nabokov's Lolita) or "virtual" child pornography (doctored digital or simulated images) are protected by the First Amendment as long as they are not obscene. Ashcroft v. Free Speech Coal., 535 U.S. 234, 249-51 (2002) (holding that, where non-obscene materials were not produced by the abuse of actual children, the Government did not have a compelling interest that could override the protection of the First Amendment). It is possible that Curtin's stories could have been found to be obscene under Miller v. California, 413 U.S. 15, 24 (1973), which defines "obscenity" for constitutional purposes, but this was not proven by the prosecution, and in any event, possession of obscenity receives significant protection against government searches and seizures. See Stanley v. Georgia, 394 U.S. 557, 568 (1969) ("[T]he First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.").
409. See Saenz v. Roe, 526 U.S. 489, 511-12 (1999) ("The right to travel clearly embraces the right to go from one place to another, and prohibits States from impeding the free interstate passage of citizens.").
410. NATURAL BORN KILLERS (Warner Bros. Pictures 1994).
411. ANTHONY BURGESS, a CLOCKWORK ORANGE (1962).
412. See FED. R. EVID. 401 (defining "relevant evidence" as evidence that makes a fact more or less probable); FED. R. EVID. 403 (allowing for the exclusion of otherwise relevant evidence if the probative value of that evidence is outweighed by the danger of unfair prejudice); FED. R. EVID. 404 (providing that, in general, "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion"); United States v. Curtin, 489 F.3d 935, 955 (9th Cir. 2007) ("[W]e do not believe that Curtin or anyone similarly situated can use the First Amendment or any other constitutional principle to exclude relevant evidence... on the specific ground that the evidence is 'reading material' or literature otherwise within constitutional protection in another setting.").
413. Old Chief v. United States, 519 U.S. 172, 183 n. 7 (1997).
414. See, e.g., David P. Bryden, Redefining Rape, 3 BUFF. CRIM. L. REV. 317, 319-20 (2000) (discussing feminist-inspired changes in evidentiary rules for rape cases).
415. See FED. R. 412 (stating that, in general, neither evidence offered to prove that an alleged victim engaged in other sexual behavior, nor evidence offered to prove an alleged victim's sexual predisposition, is admissible in any civil or criminal proceeding involving alleged sexual misconduct).