Intellectual Privacy

60 Pages Posted: 20 Mar 2008 Last revised: 4 Aug 2011

Neil M. Richards

Washington University in Saint Louis - School of Law; Yale Information Society Project; Stanford Center for Internet and Society

Date Written: 2008

Abstract

This Article is about intellectual privacy - the protection of records of our intellectual activities - and how legal protection of these records is essential to the First Amendment values of free thought and expression. We often think of privacy rules being in tension with the First Amendment, but protection of intellectual privacy is different. Intellectual privacy is vital to a robust culture of free expression, as it safeguards the integrity of our intellectual activities by shielding them from the unwanted gaze or interference of others. If we want to have something interesting to say in public, we need to pay attention to the freedom to develop new ideas in private. Free speech thus depends upon a meaningful level of intellectual privacy, one that is threatened by the widespread distribution of electronic records of our intellectual activities.

My argument proceeds in three steps. First, I locate intellectual privacy within First Amendment theory and show their consistency despite the fact that traditional metaphors for why we protect speech direct our attention to other problems. Second, I offer a normative theory of intellectual privacy that begins with the freedom of thought and radiates outwards to justify protection for spatial privacy, the right to read, and the confidentiality of communications. Third, I examine four recent disputes about intellectual records and show how a greater appreciation for intellectual privacy illuminates the latent First Amendment issues in these disputes and suggests different solutions to them that better respect our traditions of cognitive and intellectual freedom.

Keywords: First Amendment, free speech, privacy, intellectual privacy, libraries, civil liberties, freedom of thought

Suggested Citation

Richards, Neil M., Intellectual Privacy (2008). Texas Law Review , Vol. 87, p.387, 2008; Washington U. School of Law Working Paper No. 08-08-03. Available at SSRN: https://ssrn.com/abstract=1108268

Neil M. Richards (Contact Author)

Washington University in Saint Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

Yale Information Society Project ( email )

New Haven, CT 06520
United States

Stanford Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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