« Is Free Speech Becoming the Next Scare-Quote Domain? | Main | Harvard Law School Program on Corporate Governance Fellowship Announcement »

Thursday, April 12, 2018

Card Counting and the First Amendment

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.

Posted by Adam Kolber on April 12, 2018 at 05:16 PM | Permalink


Leslie Kendrick gives a nice summary of content-discrimination here at 235-38: http://www.law.columbia.edu/sites/default/files/microsites/gender-sexuality/Kendrick%2C%20Content%20Discrimination%20Revisited.pdf

To be sure, there are exceptions to the doctrine and it can be hard to say how it applies in general, let alone in the context of thought. One way to put the concern expressed in the paper is whether we could have an exception (such as your proposed "cheating" exception) based on the *method* one uses to engage in mental computation. For example, one might think that protection of freedom of thought would prohibit a government from banning "viewing pornography with fantasies of domination" but not "viewing pornography with fantasies of romantic love." One might think that a similar principle should prohibit a government from banning "betting based on X set of mental computations" but not "betting based on Y set of mental computations." As I say, though, I don't claim it's a slam dunk. It's partly based on how I imagine judges might react in a world where courts try to fill in what the First Amendment means in the context of thought without obvious concomitant expression.

Posted by: Adam Kolber | Apr 14, 2018 7:50:49 AM

If I'm not mistaken, content-discrimination is OK if it's done for non-political purposes. So for instance, certain kinds of porn are illegal, but that's OK because the reason we're outlawing those types of porn is not for obscenity/right-wing reasons but to protect the minors who would otherwise appear in porn.

So with card-counting, we are not prohibiting it as an end-in-itself, but we're prohibiting it as a means to prohibit cheating, which can be outlawed--in fact, not only cheating at gambling, but gambling itself is sometimes prohibited outright by law.

Bans on content-discrimination don't prevent the outlawing of traditional crimes like libel, fraud, perjury, falsifying evidence in court, insider-trading, cheating on standardized tests, porn of minors, etc. Cheating seems to be in those types of categories.

Posted by: Martha's Vineyard | Apr 13, 2018 9:48:45 AM

You don't win any money at Blackjack. Roulette is where it's at.

Posted by: YesterdayIKilledAMammoth | Apr 12, 2018 6:31:39 PM

Interesting post . Of course it does affect free speech. The very idea , that your thoughts are monitored , would disrupt your thoughts ,you would be occupied by such thoughts . If it would indeed , then, the very expression of your thoughts , may also be affected by it . That is to say , that your expression, wouldn't be spontaneous , and autonomous , finally , that does interfere clearly with first amendment right .
And what if the thoughts of a person , are monitored , without his knowledge? Why and how it would interfere with free speech one may question and argue ?? Well :

The very awareness , to such possibility and practice , generally speaking , may by itself , autonomously , without even concrete basis , cause in its turn , disruption of your thoughts , and anyway , your first amendment right .
One can take analogy from more common practice :

Suppose you phone line is taped , and your conversations are monitored , and you know it actually . Would it affect your expressions , and free ones as such ?? Of course , you would start to select cautiously your words , in order to avoid or reveal sensitive issues as such .

It is simple as an apple ….


Posted by: El roam | Apr 12, 2018 6:05:09 PM

The comments to this entry are closed.