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.)
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