104 Pages Posted: 30 Oct 2008
Date Written: October 28, 2008
Unlike the virtual worlds of the present, which appear to us on two-dimensional computer screens, the virtual worlds of the near future will likely be 3D worlds that swallow our perceptual universe. In such an electronic environment, we don't merely move an "Avatar" on a virtual street; we have the experience of walking upon it ourselves. The street life we see consists not of computer animations confined to a rectangular interface, but pedestrians, street vendors, and cars that appear to move all around us.
Such virtual reality (or VR) technology has long had a prominent place in science fiction - from the first episode of the Twilight Zone almost fifty years ago, to the cyberpunk of writers like William Gibson and Neal Stephenson, to Star Trek: The Next Generation's Holodeck, to the film, The Matrix. Thanks to Robert Nozick's "Experience Machine," it has also has a place in philosophy. According to a recent news report, an "immersive cocoon" - set to be available in 2014 - may soon give it a place in people's living rooms.
This article seeks to understand its place in First Amendment law. My question, in short, is whether the actions we take in our personal Holodeck would count as "speech" or other First Amendment-protected activity. The First Amendment right to freedom of speech generally protects expression, not non-expressive conduct, such as driving a car, flying an airplane, or having sex. So where in this familiar First Amendment dichotomy does one place the convincing replica of non-expressive conduct that becomes possible inside a fully immersive VR world? Are we engaging in First Amendment "speech" when we drive a phantom car, pilot an illusory plane, or have virtual sex, and if so, why do activities such as these - which generally count as "non-expressive" conduct, unprotected by the First Amendment, in the physical world - suddenly become "expressive" in a 3D virtual world? In short, courts confronting such questions will have to decide whether VR's convincing illusions are First Amendment "speech," like the movies or video games of which they are arguably three-dimensional analogues, or "conduct" like the actions they mimic.
Perhaps the most natural way to address this challenge is to ask, using the Supreme Court's test in Spence v. Washington, whether the virtual conduct is an activity that conveys a "particularized message" under circumstances in which an audience will be likely to understand that message ("the Spence test"), or, alternatively (under the exception to the Spence test established in Hurley v. Irish-American, Gay, Lesbian & Bisexual Group of Boston) is analogous to a medium already recognized as expression, such as a parade, a painting, or a musical composition. Under such a framework, a virtual reality car ride or sexual encounter will not count as speech when people seek it for the same (non-expressive and non-artistic) reasons they seek out the real-life equivalent.
This article, however, argues that such an approach is a flawed one when it applies to a private and solitary VR experience, like the one an individual would have in an adventure inside a real-life Experience Machine. When VR is used privately, I argue, it is best conceived as a technologically-sophisticated representation of individuals' fantasy life and, as such, should receive the same First Amendment protection that individuals receive when they draw sequences from a daydream or write thoughts in a journal. In fact, I argue, recognizing this helps us better mark out both the scope of First Amendment freedom of speech as well as the distinct protection that the First Amendment offers for our freedom of thought (as recognized in cases such as Stanley v. Georgia and Wooley v. Maynard). While the Spence test may help draw the boundaries of what counts as "speech" in communication or other dialogue, it should not guide us in determining what counts as "speech" or "thought" in unshared representations of our imagined worlds or actions. I argue here that private VR experience can help mark out these boundaries by clarifying (1) why such experience should count as solitary and protected speech of the kind we engage in when we draw a picture or write a poem for our own benefit and (2) why such experience should also come under the coverage of the First Amendment freedom of thought set out in Stanley v. Georgia. The same protections, I further argue, should also bar the government from thwarting our use of "telepresence" to create the illusion of being transported to another place in the real world, even though such VR experiences link us to the outside world in ways not true of films or books we watch or read in our own homes.
Apart from providing us with an initial framework for applying the First Amendment to the revolutionary changes promised by VR, this analysis of VR's status under the First Amendment can also help us to think more carefully and systematically about how First Amendment freedom of thought might apply to other activity in the external world that is closely intertwined with thought (such as use of psychotropic medication or drugs to generate certain mental states, or observations that we make of the natural world or surrounding environment to gather certain kinds of information from sources other than speech).
Keywords: First Amendment, freedom of thought, freedom of speech, privacy, virtual reality, telepresence, virtual worlds, First Amendment theory
Suggested Citation: Suggested Citation
Blitz, Marc Jonathan, The Freedom of 3D Thought: The First Amendment in Virtual Reality (October 28, 2008). Cardozo Law Review, Vol. 30, No. 3. Available at SSRN: https://ssrn.com/abstract=1291415