Header image: KF in Dall-E
the principle that an individual’s identity should always remain, to some significant extent, revisable; that no person should be tied forever to her identity at a particular moment in the distant past, and that to the extent individuals must forever account for who they were long ago, their individual freedom to act and speak as they wish—both in the present and in the future—is powerfully constrained.
- To the extent individuals must forever account for decisions in the distant past—people they, in some sense, no longer are—their freedom to speak, engage, and participate in democratic society and cultural creation is powerfully constrained.
[M]ust everyone live in fear that every word [s]he speaks may be transmitted or recorded and later repeated to the entire world? I can imagine nothing that has a more chilling effect on people speaking their minds and expressing their views on important matters. The advocates of that regime should spend some time in totalitarian countries and learn firsthand the kind of regime they are creating here.
—United States v. White, 401 U.S. 745, 764–65 (1971) (Douglas, J., dissenting).
- certain things should either remain unknown or fade from memory with the passage of time so that an individual can speak freely now, or change her mind later.
- a self-enforcing constitutional value, preserved organically by the limits of technology.
- Revisability has simply been reality’s default rule [until technology]
- There is thus a significant risk that First Amendment rules and doctrines designed for another time and technological world will hinder modern legislative efforts to preserve revisability. [As 2A “militia” was based on another time]
- [In Europe] but unlike in the United States, their efforts are seen as a natural outgrowth of a preexisting traditional concern for individual “privacy.”7 The United States lacks a similar dialectic between freedom of speech and privacy.
- Given their traditional concern for illicitly motivated censorship, American courts are unlikely to accept a concern for privacy as such as sufficient to sustain laws limiting speech. For the right to be forgotten to take root in the United States, if it is to take root, it will need to be planted in firmer soil.
- a balancing of values appropriate to their time and technological context, between the important need to preserve a space for public debate that is robust, uninhibited, and wide open, and the need to preserve a space for individuals to reflect on their conceptions of themselves, and revise what they believe.
Allowing individuals to engage in revision leads to a variety of morally valuable outcomes.
- First, it encourages individuals to share authentic versions of themselves.
- Second, it encourages intellectual innovation and experimentation. [CHILL]
- Third, it encourages individuals to engage sincerely with one another, and in that way promotes uninhibited, robust, and wide-open private speech.
- Fourth, it significantly reduces the price of persuasion.
- Fifth, it radically expands the realm of perceived and actual available choices an individual has.
- Sixth, it is essential to allowing individuals to retain autonomy.
- Allowing people to hide everything about themselves would make human interaction impossible, but preventing people from hiding anything about themselves would have the same effect.
- Seventh, in the aggregate, it has a significant positive impact on deliberative democracy.
IV. The Impact of Technological Change on the Revisability Principle
- It is permanence and easy access, which are powerful enough to largely subsume and replace the need for human memory, that stand to impinge on revisability in a new and incredibly significant way.
- Human beings lived for thousands of years in near starvation conditions, managing nonetheless to find happiness and fulfillment in that existence, at least episodically, at least often enough to perpetuate themselves. But we would hardly argue that we would choose to return to that world, where individual choice was so greatly diminished.167
- Critical to any proper First Amendment analysis going forward will be consideration of the degree to which changing context means doctrines developed for another time and technological world will have to be adapted to fit a new one where, without law, everything that happens will be known.
eudemonic = conducive to happiness.