Constitutional Safeguards for Silent Experiments in Living: Libraries, the Right to Read, and a First Amendment Theory for an Unaccompanied Right to Receive Information
84 Pages Posted: 8 Aug 2006 Last revised: 3 Nov 2008
It is now well established that the First Amendment protects not only the rights of people to engage in speech but also the right of audiences to receive it. The First Amendment not only protects the controversial religious figure who gives a sermon on the radio, but also the audience that listens at home. It protects readers who, unbeknownst to a controversial writer and perhaps long after he has died, sit silently reading his book in a public library.
This First Amendment protection for silent information-gathering, however, has garnered relatively little scholarly attention. On the surface, perhaps, there is good reason for this relative lack of attention: as courts usually analyze it, the individual's right to receive information is simply the mirror image of the right to express it. The same constitutional standards that protect ideas as they are voiced by a speaker continue to protect these ideas as they are disseminated to - and heard by - listeners. We do not, one might think, need one First Amendment at the beginning of the communicative process and a different First Amendment in the middle or the end.
This article provides a very different account of the right to receive information and ideas. While the right to read or listen is certainly in one sense "the other half" of the right to express oneself, it is also much more than that. It is not merely a complement to expression; it is also an alternative way for individuals to exercise liberty of conscience and self-development-and First Amendment jurisprudence would do well to recognize the idiosyncratic properties of this right instead of merely recasting it into the more familiar image of the speech that has traditionally been at the core of First Amendment case law. More specifically, I suggest here that the right to receive information and ideas has two crucial characteristics that the right to speech itself (in most circumstances) lacks. First, it packages intellectual liberty with an unusual degree of privacy: When individuals encounter dissenting or obscure views merely by receiving or exploring information, they exercise their First Amendment freedom without saying a word about what they believe. Second, the right to receive information not only opens the realm of individual liberty to those who have no stance they are willing to espouse before the world, it also opens it up to those who have no stance at all. Individuals who wish to form an opinion rather than voice one - or quietly gather information rather than present it - are permitted by the right to receive to sample widely from books and cultural materials instead of espousing a particular position as their own.
These two distinctive benefits of the right to receive information, I argue, help us better understand two areas of First Amendment jurisprudence that have often seemed to puzzle and confuse courts. One is how First Amendment principles often support (rather than counter) the need for privacy and anonymity. The First Amendment is often celebrated for allowing for public debate and non-conformity of the kind John Stuart Mill famously celebrated in On Liberty where he called for society to tolerate open deviation from convention. But while Mill hoped that dissenting ideas could be expressed clearly and openly, so that they could "light" up the general affairs of mankind," there may well be times when an individual will want her search for information to light up no one's affairs but her own. More than most other First Amendment activities, receipt of information allows for such privacy: it allows individuals to quietly explore alternative ways of life without alienating family members, peers, or colleagues. Moreover, better understanding the right to receive helps us understand what is perhaps the most important site for such quiet exploration: the public library. The Supreme Court has issued two splintered and, in some respects, quite puzzling analyses of how the First Amendment constrains legislatures' control over library collections. But this is partly because the library is fundamentally different from the parks, public squares, and meeting halls around which the Court has built its "public forum" doctrine for understanding how the First Amendment constrains speech regulation on public property.
At bottom, the deficiency of public forum doctrine is that it overlooks and leaves unaddressed a fundamental asymmetry between speakers and information-seekers. A speaker is in a certain sense self-sufficient. He can write a book and send it out into the world unsure who its audience will be or whether there will be any audience at all. Even before his expression reaches or impacts a listener, it is protected from censorship or any government restriction that would abridge his right to put his thoughts on paper and disseminate them. By contrast, a listener or reader has less autonomy: the material that forms the basis for her First Amendment activity necessarily comes from an external source and when such a "willing speaker" is absent, so (generally) is her basis for a First Amendment claim.
The traditional public forum does little to address this asymmetry. In a park, speakers may preach into empty space waiting for an audience to congregate; but audiences have nothing to hear until someone else begins preaching. One of the great benefits of a library is that it squarely addresses this asymmetry by placing information-seekers, who are normally dependent on speakers, in the position of being independent initiators of intellectual explorations. In libraries, it is generally readers who initiate the information-gathering process by coming in search of texts. Libraries provide individuals with "objectified cultural knowledge" (to use George Simmel's term) that they can mine for information of interest or relevance to their lives. Libraries thereby allow the information seeker the chance to exercise the kind of autonomous First Amendment activity that is usually the province of speakers-because the individual is certain (in advance of going to the library) that he will find plenty of the raw material necessary for intellectual exploration (and will likely find good quality material pertaining to the specific subject or subjects in which he is interested). This article argues that a proper appreciation of the right to receive information should safeguard this function of libraries - in supplying information that will gives an intellectual explorer independence from the private speakers he or she would otherwise depend on for information - and also assure that such intellectual exploration be able to occur anonymously, beyond the community's watch, so that people may be able to - in their reading - conduct "silent experiments in living" of a kind they are unwilling or unable to conduct in public view.
Keywords: First Amendment, right to receive information and ideas, right to read, freedom of speech, freedom of expression, privacy, libraries, political theory, political philosophy, John Stuart Mill, Georg Simmel
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