Stanley in Cyberspace: Why the Privacy Protection of the First Amendment Should Be More Like that of the Fourth
Marc Jonathan Blitz
Oklahoma City University
November 12, 2010
Hastings Law Journal, Vol. 62, December 2010
The 1969 case of Stanley v. Georgia forbade the government from restricting the books that an individual may read or the films he may watch “in the privacy of his own home.” Since that time, the Supreme Court has repeatedly emphasized that Stanley’s protection apply solely within the physical boundaries of the home: While obscene books or films are protected inside of the home, they are not protected en route to it – whether in a package sent by mail, in a suitcase one is carrying to one’s own house, or in a stream of data obtained through the Internet.
But however adequate this narrow reading of Stanley may have been in the four decades since Stanley was decided, it is ill-suited to the home life of the twenty-first century, where the in-home cultural life protected by the Court in Stanley inevitably spills over, or connects with, electronic realms beyond it. Individuals increasingly watch films not, as the defendant in Stanley did, by bringing an eight millimeter film or other physical copy of the film into their house, but by streaming it through the Internet. Especially as eReaders like Kindle, and tablets like the iPad, proliferate, they read books by downloading digital copies of them. They store their own artistic and written work not in a desk drawer or safe, but in the “cloud” of data storage offered to them in far-away servers. If courts adhere rigidly to the reading of Stanley that has developed over the past four decades, they may find that while this First Amendment constitutional shield has remained fixed in place, the home life it is supposed to protect has moved into a more interconnected environment where it is now vulnerable to precisely the kind of censorship and cultural restriction Stanley was meant to prevent.
I thus argue that courts should revisit and revise their understanding of Stanley v. Georgia in the same way that Katz v. United States revised Fourth Amendment law in 1967 – by holding that the privacy it protected was not limited to the physical boundaries of the home (as United States v. Olmstead had held in 1928) but covers wire-line communications and other electronic environments where individuals have an expectation of privacy. This is not to say that Court’s understanding of Stanley v. Georgia should be revised in precisely the same way – Stanley’s First Amendment holding protects a different kind of privacy (decisional) than the informational privacy safeguarded by the Fourth Amendment protection against unreasonable government searches. However, Stanley v. Georgia should, at a minimum, be extended to protect Web-based interactions where use of an electronic resource outside of the home (such as the Internet) is an integral component of the act of possessing, viewing, or reading cultural material.
Number of Pages in PDF File: 39
Keywords: First Amendment, Freedom of Speech, Expression, Privacy, Cyberspace, Internet, Right to Read, Right to Receive Information, Technology, Freedom of thought, Stanley v. Georgia
Date posted: November 14, 2010