Discussant: Seana Shiffrin
Theoretical question: is freedom of thought constitutionally protected only when connected to external expression or intrinsically connected to the First Amendment even if a series of thoughts don’t lead to expression. One approach: prohibitions on card counting. Playing blackjack for money is not an obvious case of expression, but if card counting is protected, then freedom of thought might be protected on its own.
(1) Question of how freedom of thought is to be protected is very interesting, but card counting regulations are coupled with commercial activity, so our reactions may not tell us much about freedom of thought. Though she thinks freedom of thought is intrinsically protected, she’s not worried about prohibitions on card counting. Look instead at state efforts to brainwash people, overwhelm capacity to think through for example excessive noise. Not coupled with other forms of regulable activity. So why not start with purer cases?
(2) Is there a free speech/thought problem with card counting when an activity is regulable, and a thought is an intention, component, or means to the external activity, the mental activity when conjoined with the external activity can be regulated: insider trading, for example, which involves use of info. Enhanced penalties under hate crimes statutes, where assailants used discriminatory motives as means of picking victims; other uses of mens rea in tort law. Freedom of thought does require vast protection for mental attitudes, but not the same opportunity to form active intentions and reveal them in ways other than through expression. Citizens are free to count cards, but not while and in order to place bets. Keeps the game fair as the state understands fairness.
(3) likes the proposed test that if a regulation on voiced expression would violate the 1A then a regulation on the thought would do so. But if you vocalized your count you’d be no more protected than if you silently counted. Nor would you be more protected if you told people you were using privileged and confidential info when buying stock. Nor would a pedophile on probation be ok if he told children that he was fantasizing about them because they were nearby. The problem is the use of mental activity in pursuit of something else, the latter of which renders it amenable to regulation: conjunction of thought with activity; kind of thought involved (intention, use of information) rather than mere attitude or belief.
Does share intuitive resistance to card counting regulations. Maybe an error theory would help. Not freedom of thought so much as inchoate ideas about fair conditions of gambling. If blackjack is luck plus skill, seems unfair to bar gamblers from using as much skill as they can acquire, especially if anyone can develop that skill (compared to insider agreement). Behemoth casinos already enjoy a protective advantage on the odds. As a political matter, no one’s hands in gambling are clean; gambling is corrupt and addictive; gamblers know they’re supporting such establishments. What most are trying to do is take money from other gamblers without productive activity. It’s regressive redistribution. If gov’t wants to insulate casinos, that’s typical unjust corporate subsidization and inequality. But that’s not about freedom of thought.
Kolber: why not brainwashing? In part because it’s relatively rare, whereas gambling is prosaic/everyday. 1A should have principled stands.
Suppose we made it a crime to increase your bet based on the attractiveness of the dealer. This still seems like a certain kind of thought/content discrimination, even though it’s conjoined with a regulable activity of betting. It wouldn’t penalize you for increasing your bet out of pity or for some other reason. Presses our buttons about thought censorship. (But this is just Wisconsin v. Mitchell, as Shiffrin pointed out.)
Insider trading: restricting information v. methods; is that a meaningful distinction? Blackjack: gov’t does enforce the idea that certain cards are face down and you aren’t allowed to cheat to ID the dealer’s face down card—certain info is off limits, just as insider trading is.
Mens rea in criminal law—maybe this isn’t difference. Example of NASA engineer who realizes that space shuttle will explode and doesn’t say anything—is he liable? Punish him based on knowledge that he had. Sleeping in the park as protest—maybe that is also relevant.
Why we might not like card counting: we can throw lots of reasons into the bucket, nonexclusively. To the extent that we can say these are low value laws, we might say all the more reason to worry about freedom of thought infringements. Restrictions on ways consumers are allowed to process advertising would also be problematic.
Shiffrin: theory of free thought can distinguish attitudes and beliefs from intention. If you think there’s a speech/action divide, look at the counterparts in thought itself.
Card counting is commercial activity, not commercial speech. Regulable under rational basis.
Kolber: does that distinguish the regulation of bets based on dealer attractiveness?
Shiffrin: that’s just a standard antidiscrimination law.
Q: is such regulation of thought even possible?
Kolber: you can tell whether someone is engaging in card counting by looking at the pattern of their bets. Someone who moves from betting $5, $5, $5 to $500 is basically certain to be counting cards. Key to what gov’t might do in the future with brain scans.
RT: (1) On gambling: Everyone should read Natasha Dow Schüll, Addiction by Design: Machine Gambling in Las Vegas. (My review.) Just tangential here—has more implications for some of the other topics today, about expression via algorithms and the uses of big data, as well as for how we conceive of the autonomous (automaton?) individual when faced with certain kinds of feedback/enticements; discusses also the line between deception and letting oneself be deceived.
(2) Small point: from the paper: “suppose a blind person wants to hire someone to tell him what cards he is dealt. A state law prohibiting such assistance would not only offend federal disability law, it would also offend the blind person’s First Amendment interests.” Sadly, we don’t need a hypothetical: that’s the DMCA. Might look at that where the thought is not allowed to become expression, at least not if it’s done through technical means. (DMCA/CFAA is also relevant to restrictions on ways consumers are allowed to process information—debate on whether ad blocker software is legal.)
(3) The NASA engineer—compare short sellers and repeated attempts to ban them. (Shows rarity of thought regulation where the thought is not conjoined with action, whether expressive or not.)
Kolber: there’s enough expression in blackjack that banning communication with a blind person about the cards would implicate the 1A.
Suppose all freedom of thought did was allow you to have thoughts: you could never act on it without fear of prohibition. If gov’t were able to so restrict your life that your thoughts could never affect your conduct, that would be troubling from an autonomy perspective. It can’t just be thoughts in your head.
Kristelia Garcia: ok with not allowing counting devices as unfair advantage, but the power of the mind is like the power of short-twitch muscles—if you have it, you shouldn’t be restricted from winning, even if steroid use can be banned.
Action v. thought: if you were counting cards to make money, that’s different if you’re counting cards to show corruption in the gambling industry.
Kolber: speeding as a protest to speed laws doesn’t generally get you out of a ticket.
David Thaw: still strikes me as observing thought at most, regulating based on action. True that thought alone shouldn’t be the only thing that’s protected. But say you had to pass an emotion test before being allowed into a venue with children. Just because you had a desire for children doesn’t mean you’ll act on them. The fact that you fail the test without acting sounds more like regulating thought than this.
Kolber: this is not as sci-fi as it sounds—neuroscientists are now saying they can determine sexual orientation. (Of course this relies on a highly particular and historically contingent definition of sexual orientation!)
If you buy into Doe v. City of Lafayette, the 1A prohibits punishment for pure thought. Could ask whether that has to be criminal. May also be a substantive due process claim.
Rebecca Bolin: table talk is prohibited by regulation. That’s the rules of the game (even for people who aren’t playing if they reveal others’ cards). You also can’t speak in other languages. Could be criminally enforced.
Kolber: one way to burden thoughts is to connect it to some activity. Gov’t can’t prohibit you from fantasizing about killing the president while playing checkers—no nexus. But Doe allows gov’t to prevent pedophile from going to a park where there are children and fantasizing.
Leslie Kendrick: discrimination in action will be regulable even if it’s coupled with protected thought. Consider other examples: contrast two tax evaders, like card counters. The harm is denying revenue to the gov’t (rather than the house in the casino). One blatantly lies on the return. Another, looking at the tax code, figures out a clever but not kosher way to deal with his income, requiring a lot of thought. Is there any difference between those two for freedom of thought purposes? The person who develops an elaborate scheme for murdering someone v. someone who just uncreatively pulls the trigger. It doesn’t matter how much thought; it matters that they used thought to achieve a harmful end. (Indeed, the elaborate one might be more punishable because of the possibilities of greater harm/nondetection or because of the moral opprobrium attached to deliberate, unheated violation of the law.) That doesn’t threaten freedom of thought—you can think elaborately without state intervention. This isn’t a massive constraint on freedom of thought precisely because there’s a harm principle.
Kolber: what makes card counting a harm is not winning $400, but the thought process you engaged in to get to $400 win on this particular bet. That distinguishes it from murder, where the dead body is still there no matter what the thought process, which only bears on level of culpability. But it only constitutes a harm if you counted cards.
RT: now you’re making me think of trademark dilution, where the alleged harm is that people will start to think differently about a trademark and value it less. Someday they may act on that by declining to buy the trademarked good, but we punish the diluter now to avoid the risk of action later.
Bolin: computer-enhanced thought—banning gambling devices versus banning thought. Casey Anthony sued under the ADA to get a golf cart—Scalia’s dissent was that it was wrong to force golf to change its rules. Relevant to the question of who gets to set the rules of the game, especially when the rules are incorporated into the criminal law as with gambling.
Breaking Vegas: a computer that watched roulette balls and learned to bet within quadrants. Mobile computers didn’t necessarily enhance thoughts but did tell people how to bet.
Kolber: gov’t doesn’t usually enforce rules of game. When can something get 1A protection when not technologically assisted but lose it with tech assistance, as with overhearing physically v. using a directional microphone? But handwriting v. speaking v. printing doesn’t get a distinction on the right to communicate what you’ve learned. So we need further thought on the device rules.
Shiffrin: psychiatric commitment. When people are interviewed about being committed, they’re asked about suicidal/homicidal thoughts, not behavior. Delusional ideation: questions about mental activity. Profile of reported mental activity can be sufficient reason to commit a person in some jurisdictions. Also relevant to competence to stand trial or control one’s own business affairs. So we do have practice responding to thoughts alone.
K’s argumentis that the meaningfulness of free thought requires a way to implement that thought. We agree that it must be implementable through external speech. Environments like association and relationships should also be protected. These are places that foster the freedom of thought. But implementing thought outside of expression isn’t an entailment of the First Amendment. Parallel claim: for free speech to be meaningful, you have to be able to implement what you’ve said. This is not a rule that we are likely to adopt outside of other constitutional protections that secure certain kinds of freedom of action.
Shiffrin: look at the very interesting cases about fortunetelling. Commercial speech doesn’t lack for protection; can also discuss the protection for speech in commercial contexts.
Kolber: if gov’t tried to prevent use of devices at home to count cards, would think that violated the 1A. (I’m not sure I get that, other than that the harm principle would not apply.)