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Author: Neil Richards

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Intellectual Privacy

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.

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Happy 800th Birthday Liverpool!

Liverpool800.jpgToday is the 800th birthday of my home town, the city of Liverpool. Most Americans that visit Britain don’t get to see Liverpool, which is a shame because it’s an interesting place. Liverpool is best known as the home of the Beatles and Liverpool FC, the most successful soccer team (by far) in England. It’s also the home of the dialect of scouse, the much-maligned but musical patois of the area (think of the Beatles’ accents, especially Ringo’s for an example). Scouse is also the name of the local signature dish, a kind of stew made of lamb and potatoes. There probably aren’t many Scousers that read Co-op, but you never know. In any event, it’s an important milestone for a city that has contributed a great deal to music and football, and is the European Capital of Culture for 2008. The image is the front page of the Liverpool Echo, the local newspaper, and is worth noting for three reasons. First, the bird on the paper’s logo is the mythical Liver Bird (pronounced to rhyme with “diver” rather than “sliver”). Second, the cover was designed by the same artist who put together the Beatles’ iconic Sgt. Pepper album cover. Third, if you look closely, in true Scouse fashion as an inducement to buy the commemorative issue (at only 45p!) is the promise of a “free pint” with the purchase of the issue. Cheers, la!

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Opening Day

Today is the first day of classes at many law schools around the country (including mine). I always get a real sense of excitement with the start of a new law school year – it’s nice to see students (and colleagues) that I have not seen all summer, and each year, as in professional sports, hope springs eternal for the home team. And I always get a thrill the first time I start speaking in a new course – the beginning of a new collaborative adventure with a new group of students, many of whom I’ve not met yet but will get to know well. It’s a wonderful sense of the new and the familiar which reminds me how much I enjoy my job.

By my count, this is my eighth first day of the law school year (counting my time as a law student, faculty fellow and now full-time law teacher). But if the first day of classes is familar to me today in part because of the routine, my very first first day of law school in 1994 had excitement mixed with lots of terror – a nerve-jangling combination of fear of the unknown, fear of failure, and fear of making a fool of myself. I remember that I had to drop some form off at the law school the afternoon before the first day of classes, and walked around an essentially empty law school wondering what would happen over the next three years. I had no idea then what my law school career would bring, or that it would be a little longer than the three years I’d signed up for. But it does make me think, as someone on the other side now, that there are thousands of starting first-year law students out there now with the same sense of trepidation and excitement, about to embark on three months they will remember vividly for the rest of their lives. It’s something that’s easy for those of us who have been doing this for a number of years to forget, even though we were all once terrified first years on our first day, hoping that someone else would be the one to get called on by the scary professor.

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Beware the Teenie Weenie: Social Norms and Expressive Culture

teenieweenie.jpgI’ve been doing a lot of reading and thinking about intellectual freedom lately, as part of a project on the overlap between intellectual privacy rules and First Amendment values. I’ve also come across some pretty weird stuff, like this story from the German media about a children’s book deal that fell through. A famous German children’s book author was trying to get a book deal to publish a translated version of her illustrated children’s book in the US. Unfortunately, the deal didn’t happen after an irreconcilable disagreement arose over a picture appearing in a museum scene in the book. As the article puts it rather cheekily:

What could possibly have got the suits at [the publisher] so hot under the overly starched collar? A painting depicting a gratuitous Roman orgy being viewed by wide-eyed 5-year olds? A massive bronze phallus gawped at by an awestruck group of pre-teens? Hardly. Apart from a tasteful nude reclining in a slightly blurred watercolor in the background, the main offending artifact was a tiny male statue and its microscopic penis.

Apparently, the offending image was less than half a millimeter in size, but the publisher insisted on its removal for fear of a backlash from offended parents.

We could dismiss this as a fairly silly story about the lunacy of the publishing industry, but I think there is a serious issue here. This is not an issue of censorship, because the government is not involved in making the book unavailable. But one of the problems with the way we tend to think about speech, is that we are fixated on the model of legislative rules that get remedied (or not) by judges. If we’re really interested in promoting an expressive culture, we need to look beyond this judicial anti-censorship model.

The teenie weenie case points up the critical role of social norms in helping to define the contours of our expressive culture. Theories of free speech focus a great deal on legal rules even though most people’s decision to speak or not speak on questions is principally mediated by the concern of how others (employers, friends, strangers, book publishers) will act towards us depending upon what we say. The norms of the book publisher in this case meant that this book was not made available for the US market.

What’s the harm with that? Well, the ability to think for ourselves requires access to a wide variety of materials. When books aren’t published because they are offensive, we are deprived of what they offer. This case involves just one book, but the aggregated effect of small decisions like this really determines the intellectual space that our minds inhabit. The social norms which this decision seems to reflect would (if strong enough) push certain notions of art out of children’s literature, and could have an effect on how children come to see the world, the nature of art, and the human body. Publishers of books are in business to make money, but they should also realize (as reporters and librarians frequently do) that they occupy a social institution that has real effects on our expressive culture. Our expressive culture depends on publishers fulfilling their professional role as guardians of free speech as well as profit-maximizers. Wimping out because of possibly imaginary fears of angry parents does us all a disservice, at least if we care more about an open-minded culture than protecting people (even little ones) from the teenie weenie.

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Wikipedia, Consensus, and Truth (or at least Gary Coleman)

Dave’s post on WikiScanner reminds me of an article last week in The Times about the other juicy revelations that Wiki-Scanner has uncovered, such as self-editing by the CIA, the Vatican, the British Labour Party, and a number of big corporations. The article goes on to argue:

There is no necessary reason that Wikipedia’s continual revisions enhance knowledge. It is quite as conceivable that an early version of an entry in Wikipedia will be written by someone who knows the subject, and later editors will dissipate whatever value is there. Wikipedia seeks not truth but consensus, and like an interminable political meeting the end result will be dominated by the loudest and most persistent voices.

This is a good (if a bit grumpy) criticism of the Wiki model. Wikis do seem to gravitate towards consensus, and as such are really efficient aggregators of facts. Where facts are not in dispute, Wikis do a fantastic job. For example, if you wish to learn about The Simpsons, Doctor Who, or the geneaology of the House of Windsor, Wikipedia is a great resource.

But for the important questions, it is quite different. Any time judgment or contested notions of truth come into play, people are quite naturally going to assert their own view of reality. Wikipedia is just another context (albeit a highly-manipulable one) in which these fights play out. In addition to consensus, money, energy, and persistence can affect how the “truth” is presented. It probably shouldn’t be surprising that Wikipedia entries are being manipulated in this way. If anything, it’s more surprising that people seem to believe that Wikipedia entries can give them easy truth on complicated questions that require judgment, reflection, interpretation, and thought. Even Encyclopedia Britannica can’t do that, though it may be a little less subject to manipulation in the name of good PR. But then again, Britannica is probably not as strong on Gary Coleman’s appearance on the Simpsons (episode 235, in case you were wondering).