Computers, Privacy & the Constitution

The First Amendment & Autonomy

-- By NathanielCrider - 02 May 2015


The Fourth Amendment's anachronistic focus on places is insufficient to protect the privacy of persons. But like water squeezed from one end of a balloon to another, the privacy right might be displaced and secured elsewhere in the Constitution. In this respect, the First Amendment, which protects an individual's autonomy interest in free expression, is a prime candidate.

There are, however, a variety of autonomy-based theories of free expression. Each offers a more or less plausible description of our system of free expression. And each protects a different range of autonomy interests, which may be more or less coextensive with privacy interests.

But for the purposes of this exercise, we will not concern ourselves with all the interests that might be subsumed by First Amendment. We will focus instead on that interest most imperiled by the interplay between the network and public and private data collection policies. That is, the freedom to read -- no less than the freedom of thought -- for which individuals can hardly have a more pressing autonomy interest.

Free Expression as an Intrinsic Good

Our first theory posits that free expression it is a good in and of itself. To distinguish the intrinsic goodness of free expression from other actions, it is often articulated in terms of human beings’ unique rational capacities. Because these capacities integral to a person's inherent nature, any limitation on them is "the greatest displeasure and indignity to a free and knowing spirit that can be put upon him."

To its credit, this view offers broad protection of freedom of thought. But it suffers from several deficiencies. For one thing, freedom, in a broad sense, is not essential to happiness or pleasure, so it is doubtful that any particular freedom is essential to happiness. And to say that freedom of thought is essential to happiness tells us little about how to balance the inevitably conflicting desires of listeners, speakers, and third parties affected by its consequences.

Free Expression as Facilitating the Good Life

An Aristotelian conception of happiness also asserts that human beings have unique capacities, but the focus is on the maximal potential that distinguishes humans from other animals. A good life is one in which the individual realizes her full potential by the development of her faculties.

Self-development requires the individual to explore the limits of her mind. Because self-development is stultified by isolationism, she needs to externalize the contents of her own mind and access the contents of others. She must read, write, speak and listen. So understood, she has strong autonomy interests in having authentic deliberations and reactions, exercising judgment, and living among other autonomous individuals. Any limitation on her ability to think freely is hence unwarranted.

This argument, however, fails to distinguish intellectual self-fulfillment from other important desires less peculiarly human. Because restrictions on freedom of thought are usually justified by interests in physical well-being and security, the argument should tell us why intellectual self-fulfillment is more important than those interests. The circle is not squared by doubling down on the unique capacities of humans, for it is just as plausible that those desires shared by humanity and animals are more basic and therefore more important.

Furthermore, a system of free expression that completely embodies Nicomachean ethics does not resemble our current system. If the First Amendment were primarily concerned with promoting the self-development, then we might expect robust protections for associations, artistic expression, and commercial speech.

Free Expression as a Manifestation of Individual Sovereignty

A third argument asserts that the mind is simply off limits to the coercive powers of the state. While an individual may cede authority to the state to draw the necessary boundaries between their respective spheres of action, her interest in autonomy forbids her from ceding authority to the state to limit her use of rational powers. Even if by choosing one alternative she will be punished by the state, she retains the right to receive information, weigh conflicting justifications, and make her choice. She is absolutely sovereign in her deliberations.

It is a virtue of this theory that its narrow conception of autonomy is consistent with our moral and political history. From a non-positivist legal perspective, however, we might be concerned that a state is not precluded – at least morally – from limiting sources information that might produce non-compliance of a just law. To that end, the argument may also be significantly underinclusive in its protection of the individual from efforts by the state to subvert rational deliberation.

Free Expression as a Necessary Condition for Self-Governance

A final theory argues that democracy requires that citizens experience their state as an example of authentic self-determination. Because freedom of thought is necessary for the individual to participate in the processes through which citizens come to identify a government as their own, the state may not cut an individual out of the participatory processes or regulate public discourse so as to promote a particular vision of collective identity. Subordinate to the autonomy interests of the individual, legitimate democratic government therefore demands free and open public discourse.

That the rhetoric of this argument finds support in several opinions of the court suggests either its potency or incomprehensibility. But even supposing the case of the former, the participatory theory is only nominally concerned with those interests central to a strong autonomy-based account of free expression. And whether a regulation actually facilitates democratic participation will be uncertain in paradigm cases, much less cases in which core autonomy interests are directly implicated.


A person’s privacy interest in freedom of thought may indeed find refuge in several autonomy-based theories of free expression. The project, however, is not without difficulties. Some theories advance a conception of autonomy broader than that recognized by the First Amendment. Others offer a conception that fails to recognize why autonomy interests are important. If the First Amendment is to protect the individual’s privacy interest in freedom of thought, then we may find the strongest footing with a theory grounded in the absolute sovereignty of the individual.


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r6 - 29 Jun 2015 - 15:28:33 - MarkDrake
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