Stanley in Cyberspace: Why the Privacy Protection of the First Amendment Should Be More Like That of the Fourth
Marc Jonathan Blitz
Volume 62, Issue 2, 357-400
The 1969 case Stanley v. Georgia forbade the government from restricting the books that an individual may read or the films he may watch “in the privacy of his own home.” Since that time, the Supreme Court has repeatedly emphasized that Stanley’s protection applies solely within the physical boundaries of the home: While obscene books or films are protected inside of the home, they are not protected en route to it—whether in a package sent by mail, in a suitcase one is carrying to one’s house, or in a stream of data obtained through the Internet.
However adequate this narrow reading of Stanley may have been in the four decades since the case was decided, it is ill-suited to the twenty-first century, where the in-home cultural life protected by the Court in Stanley inevitably spills over into, or connects with, electronic realms beyond it. Individuals increasingly watch films not, as the defendant in Stanley did, by bringing an eight millimeter film or other physical copy of the film into their house, but by streaming it through the Internet. Especially as eReaders, such as the Kindle, and tablets, such as the iPad, proliferate, individuals read books by downloading digital copies of them. They store their own artistic and written work not in a desk drawer or in a safe, but in the “cloud” of data storage offered to them on far-away servers.
Thus, I argue that courts should revisit and revise their understanding of Stanley v. Georgia in the same way that Katz v. United States revised Fourth Amendment law in 1967—by holding that the privacy it protected is not limited to the physical boundaries of the home (as United States v. Olmstead had held in 1928) but covers wire-line communications and other electronic environments in which individuals have an expectation of privacy. This is not to say that the Court’s understanding of Stanley v. Georgia should be revised in precisely the same way. However, Stanley v. Georgia should, at a minimum, be extended to protect web-based interactions, where use of an electronic resource outside of the home, such as the Internet, is an integral component of the act of possessing, viewing, or reading cultural material.