Is Data Speech?

By Bambauer, Jane | Stanford Law Review, January 2014 | Go to article overview

Is Data Speech?


Bambauer, Jane, Stanford Law Review


A. The Negative Right to Create Knowledge

The negative right to create knowledge ensures that the state will not interfere unduly with its constituents' learning. This is not an entirely new concept for courts or for scholars, but the varied instantiations of a right to knowledge have been developed in the abstract and through unusual fact patterns.

Courts have already had occasion to interpret "speech" expansively so that it encompasses the right to receive or access information. (132) The impetus for doing so is plain: free speech will have little value if the government has substantial influence over the ideas and facts that speakers are permitted to consider. At a higher level of generality, the First Amendment safeguards the freedom of thought. The Supreme Court recognized this right in Stanley v. Georgia, when it disallowed enforcement of an obscenity ban, deciding that Georgia "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." (133) Freedom of thought is an old and uniquely American liberty. Samuel Adams, celebrating the signing of the Declaration of Independence, commented: "[F]reedom of thought and the right of private judgment, in matters of conscience ... direct their course to this happy country as their last asylum." (134)

In 2002, the Supreme Court reaffirmed this sentiment, stating that "[t]he right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." (135) But doesn't this have the order reversed? Thought is almost always a precursor to utterances, art, and other forms of expression. And, although a subset of thoughts is inspired by the speech of others, many thoughts are not. They are either the product of original ideas or first-time observations of the world.

While courts have been slow to flesh out the right to free thought, constitutional law scholars have laid a good deal of groundwork to provide a theoretical justification for deriving a freedom of thought from the freedom of speech. (136) Seana Shiffrin has done a particularly nice job articulating a thinker-centered theory for the First Amendment, (137) so I borrow heavily from her work to operationalize the right to create knowledge.

For Shiffrin, the First Amendment is called into service when a statute, regulation, court decision, or lawmaking activity (1) on its face exhibits a design to "ban or attempt to ban the free development and operation of a person's mind or those activities or materials necessary for its free development and operation"; (2) has the effect of interfering too greatly with the free development and operation of a person's mind; or (3) has a rationale which, even if not overtly designed to conflict with the free development of a person's mind, is nevertheless unacceptably inconsistent with that right. (138)

The right to create knowledge ought to follow the same framework, but with a narrower focus on the uninhibited acquisition of knowledge. The "free development and operation of a person's mind" has nearly infinite range. Public schools, by selecting what to teach and what not to teach, might bar other options the student would otherwise have to develop her mind. But a school's curriculum does not bar the student's opportunity to acquire specific pieces of knowledge that the student can acquire elsewhere. In short, the right to create knowledge promises freedom from intentional or excessive government restraints on learning something new.

This framework avoids the need to define the nature of "speech." Instead, the framework focuses on the nature of the state action. It asks what purpose a regulation seeks to serve and how the regulation operates in practice. The previously vexing scope question is much more manageable when the analysis centers on the regulation rather than the object of the regulation. (139)

A purpose-driven test lines up with Elena Kagan's insight that the Court's recognition of speech interests tracks an often-implicit search for the inappropriate motives of lawmakers. …

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