Neuroscientists continue to get better at reading our minds. (Technically they correlate observable brain data to our reported thoughts, but what else could mind reading be?) Here, for example, MIT researchers showcase a non-invasive method of assessing thought using neuromuscular impulses in our faces that activate when we think about particular words. It may someday help people with certain speech difficulties or serve an even broader audience in next generation Google Glass-type devices. We can get much more direct neural information if we connect electrode arrays directly to the brain though such approaches are obviously too invasive to have widespread general uses. The law has yet to wrestle much with government invasion of our minds through new brain technologies (query: can the government force you to use the MIT device above to unlock your smartphone?), but this may change in the future.
In Two Views of First Amendment Thought Privacy, I explored a hypothetical question that could be raised even today. Namely, could the government criminalize card counting at blackjack? Card counters keep track of public information (the other cards played at the table) and engage in some mental computations to turn the odds of winning in their favor. It is already a serious crime in many places to use a device to count cards, but could the state criminalize card counting that just uses your mind?
Basically everyone who plays blackjack engages in some mental computations just to decide whether to hit or stick. For the state to allow some mental computations but not others seems like what we might call "thought-content discrimination": the state picks certain methods of mental computation to permit and some to prohibit. When I asked law professors at several faculty workshops whether the First Amendment would prohibit the state from criminalizing card counting, hands were split about evenly.
In the paper, I present the case that card counting might be protected by the First Amendment, though I don't purport to do more than show the argument's plausibility. I realize that it's an uphill battle because there is little case law testing what thought protections, if any, the Amendment has outside of contexts that also include expression. Hence the two views of First Amendment Thought Privacy: (1) The Amendment protects freedom of thought itself (what I call the independent view), or (2) it only protects freedom of thought when linked to expression (what I call the intertwined view). Existing case law does little to distinguish the two views but the answer may have implications for the privacy of card counting (where the activity is not obviously expressive) and implications more broadly for the future as brain-related technologies improve.
(Originally posted at Prawfsblawg where I am guest blogging for a month.)
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