Two Views of First Amendment Thought Privacy
43 Pages Posted: 18 Jan 2016 Last revised: 20 Oct 2016
Date Written: January 17, 2016
For centuries, our thought privacy has been reasonably well protected by the difficulty others have in deciphering our 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 weak First Amendment freedom of thought, since thoughts often go unexpressed. Alternatively, thought may be protected independent of expression. If so, our freedom of thought is more expansive.
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 predictive calculations used to count cards.
Keywords: First Amendment, thought privacy, freedom of thought, card counting, blackjack, voluntary act
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