THE DANGERS OF FIGHTING TERRORISM WITH TECHNOCOMMUNITARIANISM: CONSTITUTIONAL PROTECTIONS OF FREE EXPRESSION, EXPLORATION, AND UNMONITORED ACTIVITY IN URBAN SPACES

Part I of this article examines how some commentators can plausibly argue that constitutional liberty and privacy protections do not protect the individual liberty and privacy that modern individuals have come to expect in many public spaces, particularly in urban environments. Constitutional liberalism, this section points out, makes this question a difficult one, because it is marked by scrupulous neutrality towards different visions of “the good life.” In other words, the constitutional order does not condemn those who choose a communitarian way of life and favor those who prefer individualism. Rather, it tolerates both of these (and other) preferences about one’s social and cultural environment, and leaves citizens free to opt for the life of their choice. Part II suggests that it is difficult to make sense of our modern jurisprudence of First Amendment rights, especially as they relate to anonymous communication and association on the Internet and elsewhere, unless one allows room in our constitutional law for a jurisprudence that “captures” and preserves social incarnations of liberty and privacy that were not yet in existence when theConstitution was drafted. Therefore, it is possible for for courts and others to find that freedom-enabling institutions that did not exist earlier in American history, and might cease to exist in the future, deserve certain constitutional protection while they are here. Part III explains that like the virtual liberation offered by the Internet, city life offered and continues to offer an invaluable refuge for substantial expressive activity and intellectual exploration that would be far more elusive without this type of urban existence. It provides individuals with an incredibly rich bazaar of ideas, and allows them to browse among these deas, substantially free from outside monitoring or control. While First Amendment law does not single out urban environments for protection, it protects such environments indirectly by preserving certain opportunities that are characteristic of modern urban life: opportunities for giving speeches to large crowds, for confronting strangers with ideas they may find unfamiliar or provocative, or for speaking or gathering information in the anonymity of the crowd

The Right to an Artificial Reality? Freedom of Thought and the Fiction of Philip K. Dick

In Anarchy, State, and Utopia, the philosopher Robert Nozick describes what he calls an “Experience Machine.” In essence, it produces a form of virtual reality (VR). People can use it to immerse themselves in a custom-designed dream: They have the experience of climbing a mountain, reading a book, or conversing with a friend when they are actually lying isolated in a tank with electrodes feeding perceptions into their brain. Nozick describes the Experience Machine as part of a philosophical thought experiment—one designed to show that a valuable life consists of more than mental states, like those we receive in this machine. As Nozick says, “we want to do certain things, and not just have the experience of doing them.” An 80-year sequence of experiences generated by the machine would not be of equivalent value to the lifetime of the identical set of experiences we derive from interactions with real people (who are not illusions, but have minds of their own), and with a physical universe that lies outside of us. On the contrary, says Nozick, a solipsistic life in the Experience Machine is a deeply impoverished one

Stanley in Cyberspace: Why the Privacy Protection of the First Amendment Should Be More Like That of the Fourth

The 1969 case Stanley v. Georgia forbade the government from restricting the books that an individual may read or the films he may watch “in the privacy of his own home.” Since that time, the Supreme Court has repeatedly emphasized that Stanley’s protection applies solely within the physical boundaries of the home: While obscene books or films are protected inside of the home, they are not protected en route to it—whether in a package sent by mail, in a suitcase one is carrying to one’s house, or in a stream of data obtained through the Internet. However adequate this narrow reading of Stanley may have been in the four decades since the case was decided, it is ill-suited to the twenty-first century, where the in-home cultural life protected by the Court in Stanley inevitably spills over into, or connects with, electronic realms beyond it. Individuals increasingly watch films not, as the defendant in Stanley did, by bringing an eight millimeter film or other physical copy of the film into their house, but by streaming it through the Internet. Especially as eReaders, such as the Kindle, and tablets, such as the iPad, proliferate, individuals read books by downloading digital copies of them. They store their own artistic and written work not in a desk drawer or in a safe, but in the “cloud” of data storage offered to them on far-away servers. Thus, I argue that courts should revisit and revise their understanding of Stanley v. Georgia in the same way that Katz v. United States revised Fourth Amendment law in 1967—by holding that the privacy it protected is not limited to the physical boundaries of the home (as United States v. Olmstead had held in 1928) but covers wire-line communications and other electronic environments in which individuals have an expectation of privacy. This is not to say that the Court’s understanding of Stanley v. Georgia should be revised in precisely the same way. However, Stanley v. Georgia should, at a minimum, be extended to protect web-based interactions, where use of an electronic resource outside of the home, such as the Internet, is an integral component of the act of possessing, viewing, or reading cultural material

Regulating Drones Under the First and Fourth Amendments

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September 2015. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Given UAV utility and cost-effectiveness over a vast range of tasks, however, widespread commercial use ultimately seems certain. Consequently, it is imperative to understand the constitutional restraints on public flight and constitutional protections afforded to private flight. Unfortunately, although there are a few Fourth Amendment precedents in manned aviation, they are mired not only in 1980s technology but also in the 1980s third party doctrine, and therefore do not reflect more recent Fourth Amendment developments and doctrinal fissures. There is also considerable uncertainty over First Amendment protection of information-gathering—for example, is there a right to record? Further, there is no judicial or scholarly analysis of how UAV flight fits within contemporary First Amendment forum doctrine, a framework that provides a useful starting point for analyzing speech restrictions in government-controlled airspace, but that comes with some uncertainties of its own. It is into this thicket that we dive, and fortunately some clarity emerges. Although the Fourth Amendment third party doctrine hopelessly misunderstands privacy and therefore under-protects our security and liberty interests, the Supreme Court’s manned flyover cases can be mined for a sensible public disclosure doctrine that seems agnostic as to the various Fourth Amendment conceptions: we do not typically require only law enforcement to shield its eyes. Of course, both constitutions and legislation can place special restrictions upon law enforcement, and sometimes doing so makes good sense. But as a general Fourth Amendment matter, the officer may do and see as the citizen would. Hence to understand Fourth Amendment regulation, we must understand how the First Amendment limits government restraint on speech-relevant private UAV flight. Here we analyze the developing right to record and apply contemporary forum doctrine to this novel means of speech and information-gathering. If navigable airspace is treated as a limited public forum, as we propose with some qualification, then the Federal Aviation Administration will have significant—though not unlimited—regulatory leeway to evenhandedly burden speech-related UAV activities where doing so would reasonably promote safe unmanned and manned flight operations. The Agency, however, would likely need further congressional action before it can restrict UAV flight based on privacy rather than safety concerns. As the legality and norms of private flight correspondingly take shape, they will inform Fourth Amendment restrictions on government use

Free Speech, Occupational Speech, and Psychotherapy

Psychotherapy, said one of its earliest clients, Anna O, is a “talking cure.” It banishes or lessens mental illness and suffering not with medicine or surgery, but with words. This aspect of psychotherapy raises an interesting set of First Amendment questions. Is verbal communication between a therapist and her client protected by the First Amendment even though it is part of a healing process, or does government have the same authority to restrict this speech-based healing method as it does to restrict the use of pharmaceuticals or medical equipment? Must it show that therapists’ statements about human psychology are false or harmful to the client? Or may it constitutionally bar even truthful therapist-client communications that raise little risk of harm to the client’s physical or mental health, on the grounds that such verbal treatments promote values or behaviors at odds with those of the profession or of the larger society? These questions are challenging for First Amendment law largely because talk therapy is the kind of activity that straddles an important boundary line in First Amendment law and theory. As the Supreme Court noted in Lawrence v. Texas, the Constitution assumes that there will be certain “spaces” where “the State” is not a “dominant presence” and where sovereignty belongs to each individual, not those who exercise collective political power. Among such spaces is the First Amendment-secured realm of “thought, belief, [and] expression.” 539 U.S. 558, 562 (2003). This constitutional line drawn by the Court in Lawrence mirrors that described by John Locke in A Letter Concerning Toleration: Locke argued that while state power extends to “civil interests” such as protection of “life, liberty, health” and other “outward” concerns, it does not extend to the “care of the soul,” which remains under the control of the individual himself. The challenge presented by psychotherapy, I argue in this article, is that it falls partly within and partly outside this constitutional shielded sphere of mental and expressive autonomy. On the one hand, if there is any activity that belongs in the realm of constitutionally protected “thought, belief, [and] expression” it the self-exploration that individuals engage in as they try to understand their inner lives – whether it occurs in a private meditation or diary entry, or in a psychotherapist’s office. When we use talk therapy, in part, to shape (or reshape) our conception of the good, or the perspective we should take on particular life events, the state should not be permitted to forcibly substitute its values for ours. On the other hand, while government is not supposed to interfere with our choices about what to say or think, or about what values to hold, it is charged with protecting our health and safety, and, in psychotherapy, such health and safety interests are very often at stake – for example, when individuals rely on therapists to make accurate diagnoses of possible mental illnesses (or rule them out), and suggest the proper treatment such conditions. The central question about talk therapy’s First Amendment status then is what kind of First Amendment regime can best reconcile these two conflicting demands – to keep government interference out of the way we understand and shape our mental life through conversation, while letting it into medical practices with significant stakes for our mental health. How, in other words, can First Amendment law simultaneously allow the state to regulate the aspects of psychotherapy that are its business, while keeping it out of those aspects that are in the sphere of individual autonomy? This is also a question that is key to the debate about the First Amendment status of other “occupational speech” that occurs when we seek verbal guidance from other experts