CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, January 27, 2016

Kolber on First Amendment Thought Protection

KolberAdam J. Kolber (Brooklyn Law School) has posted Two Views of First Amendment Thought Privacy (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:

For centuries, our thought privacy has been reasonably well protected by the difficulty of deciphering other people’s thoughts. This natural protection is in jeopardy, however, as emerging technologies improve our ability to, loosely speaking, read minds. When these methods get cheaper and more accurate, the state may seek to monitor and regulate thought in ways previously impossible.

The First Amendment undoubtedly protects thought privacy, but current law leaves open two very different levels of protection: On one view, thought is only protected when intertwined with expression. If so, we have rather limited First Amendment freedom of thought, since thought often goes unexpressed. Alternatively, thought may be protected independent of expression. If so, we have more expansive First Amendment freedom of thought.



I explore these views by considering blackjack players who “count cards.” Card counters perform mental calculations on publicly available information — the cards dealt in plain sight — in order to turn the odds in their favor. Even though card counting does not obviously implicate expression, I argue that the First Amendment plausibly gives us the right to count cards in our own minds.

More controversially, I argue that the Amendment may even protect the right to count cards when combined with an overt action, such as betting in a casino. A criminal prohibition on betting while counting cards might constitute impermissible thought-content discrimination by permitting bettors to make the basic calculations required to play blackjack but not the more accurate calculations used to count cards. It is difficult, however, to predict whether courts would recognize thought-content discrimination and, if they would, how they would cabin its scope.

https://lawprofessors.typepad.com/crimprof_blog/2016/01/kolber-on-first-amendment-thought-protection.html

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