Intellectual privacy

This Article is about intellectual privacy-the protection of records of our intellectual activities-and how legal protection of these records is essential to the First Amendment values of free thought and expression. We often think of privacy rules as being in tension with the First Amendment, but protection of intellectual privacy is different. Intellectual privacy is vital to a robust culture of free expression, as it safeguards the integrity of our intellectual activities by shielding them from the unwanted gaze or interference of others. If we want to have something interesting to say in public, we need to pay attention to the freedom to develop new ideas in private, either alone or with trusted confidants. Free speech thus depends upon a meaningful level of intellectual privacy, one that is threatened by the widespread distribution of electronic records of our intellectual activities. My argument proceeds in three steps. First, I locate intellectual privacy within First Amendment theory and show how intellectual privacy undergirds each of the traditional understandings of why we protect free speech. Second, I offer a normative theory of intellectual privacy that begins with the freedom of thought and radiates outward to justify protection for spatial privacy, the right to read, and the confidentiality of communications. Third, I examine four recent disputes about intellectual records. I show how a greater appreciation for intellectual privacy can illuminate the latent First Amendment issues in these disputes and can suggest different solutions to them that better respect our tradition of cognitive and intellectual freedom.