Constitutional Rights and Technological Change

David S. Han - Pepperdine University Caruso School of Law
Vol. 54
Spring 2020
Page 71

Technological change has long acted as an agent of doctrinal disruption within constitutional rights jurisprudence. This disruptive potential is rooted in a basic tension that pervades all constitutional rights doctrine: while such doctrine carries a substantial degree of stickiness and inertia, it is also crafted at a particular time, under a particular set of technological conditions and social intuitions shaped by those conditions. Thus, whenever longstanding constitutional rights doctrine collides with significant technological change, it inevitably creates the risk of doctrinal obsolescence — the perpetuation of an outdated doctrinal framework that no longer sensibly fits the actual world in which we live today.

This Article examines this interaction between constitutional rights doctrine and technological change by focusing specifically on the two rights that have been the most directly and visibly affected by such change: the First Amendment’s protection of free speech and the Fourth Amendment’s right against unreasonable searches and seizures. Unlike most academic commentary on this subject, which has tended to focus on discrete doctrinal issues, this Article elucidates this interaction at a broad, trans-substantive level, which yields some useful observations and principles that can guide courts in a wide variety of constitutional rights contexts.

The Article first catalogues the different ways by which technological change produces disruption within constitutional rights doctrine. Technological change can disrupt doctrine by altering the preexisting balance between individual freedom and the government’s ability to act; by producing novel scenarios that stretch the boundaries of the right as presently conceptualized; or by shifting social attitudes and practices regarding the right in question. Each unsettles the doctrine in a distinct manner, requiring courts to evaluate different aspects of the doctrinal framework or the theoretical premises underlying the doctrine.

The Article then argues that in moments of significant and rapid technological change like the present, courts should loosen the traditionally strong preference for clear, rule-like approaches in constitutional rights doctrine and embrace an incremental degree of doctrinal complexity and open-endedness. The present technological context represents an inflection point at which the lack of fit between the rigid rules of the past and the rapidly changing circumstances of the present is simply too great to justify the benefits associated with many traditional bright-line rules. In times like this, real-world complexity calls for more nuanced, provisional, and open-ended doctrinal approaches. A failure to recognize this dynamic as the Court has evinced in its recent First Amendment jurisprudence threatens to entrench outdated doctrinal frameworks that will only grow more irrelevant and unstable as technological conditions continue to evolve.
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