\\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 1 13-MAR-01 12:50 (cid:65)(cid:82)(cid:84)(cid:73)(cid:67)(cid:76)(cid:69)(cid:83) SIREN SONGS AND AMISH CHILDREN: AUTONOMY, INFORMATION, AND LAW YOCHAI BENKLER* New communications technologies offer the potential to be used to promote funda- mental values such as autonomy and democratic discourse, but, as Professor Yochai Benkler discusses in this Article, recent government actions have disfavored these possibilities by stressing private rights in information. He recommends that laws regulating the information economy be evaluated in terms of two effects: whether they empower one group to control the information environment of an- other group, and whether they reduce the diversity of perspectives communicated. Professor Benkler criticizes the nearly exclusive focus of information policy on property and commercial rights, which results in a concentrated system of produc- tion and homogenous information products. He suggests alternative policies that promote a commons in information, which would distribute information produc- tion more widely and permit a greater diversity of communications. Introduction.................................................... 26 R I. Autonomy, Law, and Information for Context-Bound Individuals .............................................. 31 R A. Law and Autonomy for Context-Bound Individuals.......................................... 32 R B. Information and Autonomy for Context-Bound Individuals.......................................... 41 R C. Delimiting the Province of Autonomy in Shaping Information Law.................................... 50 R II. Property and Influence ................................. 57 R A. Autonomy and Property in Communications Infrastructure ....................................... 62 R B. Alternative Models of Constraining the Autonomy Deficit of Property.................................. 72 R C. The Public Domain ................................. 84 R III. Social Patterns of Information Flow and Personal Autonomy .............................................. 88 R * Professor of Law, New York University. LL.B., 1991, Tel Aviv University; J.D., 1994, Harvard University. For very helpful comments I am grateful to Ed Baker, Vicki Been, Chris Eisgruber, Barry Friedman, Larry Kramer, Liam Murphy, Carlos Rosenkrantz, Larry Sager, and the participants in the Constitutional Theory Colloquium at the New York Uni- versity School of Law. I am grateful to Alex Driggs for his help in researching and editing the manuscript. Work on this Article was supported by a grant from the Max Greenberg and Filomen D’Agostino Research Funds at the N.Y.U. School of Law. 23 \\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 2 13-MAR-01 12:50 24 NEW YORK UNIVERSITY LAW REVIEW [Vol. 76:23 A. Three Storytelling Societies and an Adequate Range of Options .......................................... 89 R B. Media Market Blues................................ 92 R C. High-Definition TV and Autonomy................. 98 R D. Intellectual Property and the Organization of Information Production............................. 101 R E. Filtration and Accreditation: The Babel Objection . 105 R Conclusion: Paths for the Taking .............................. 109 R Then, being much troubled in mind, I said to my men, “My friends, it is not right that one or two of us alone should know the prophecies that Circe has made me, I will therefore tell you about them, so that whether we live or die we may do so with our eyes open. First she said we were to keep clear of the Sirens, who sit and sing most beautifully in a field of flowers; but she said I might hear them myself so long as no one else did. Therefore, take me and bind me to the crosspiece half way up the mast; bind me as I stand upright, with a bond so fast that I cannot possibly break away, and lash the rope’s ends to the mast itself. If I beg and pray you to set me free, then bind me more tightly still.” I had hardly finished telling everything to the men before we reached the island of the two Sirens, for the wind had been very favourable. Then all of a sudden it fell dead calm; there was not a breath of wind nor a ripple upon the water, so the men furled the sails and stowed them; then taking to their oars they whitened the water with the foam they raised in rowing. Meanwhile I took a large wheel of wax and cut it up small with my sword. Then I kneaded the wax in my strong hands till it became soft, which it soon did between the kneading and the rays of the sun-god son of Hyperion. Then I stopped the ears of all my men, and they bound me hands and feet to the mast as I stood upright on the crosspiece; but they went on rowing themselves. When we had got within ear- shot of the land, and the ship was going at a good rate, the Sirens saw that we were getting in shore and began with their singing. “Come here,” they sang, “renowned Ulysses, honour to the Achaean name, and listen to our two voices. No one ever sailed past us without staying to hear the enchanting sweetness of our song—and he who listens will go on his way not only charmed, but wiser, for we know all the ills that the gods laid upon the Argives and Trojans before Troy, and can tell you everything that is going to happen over the whole world.” They sang these words most musically, and as I longed to hear them further I made signs by frowning to my men that they should set me free; but they quickened their stroke, and Eurylochus and Perimedes bound me with still stronger bonds till we had got out of \\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 3 13-MAR-01 12:50 April 2001] AUTONOMY, INFORMATION, AND LAW 25 hearing of the Sirens’ voices. Then my men took the wax from their ears and unbound me.1 * * * The conclusion is inescapable that secondary schooling, by ex- posing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integra- tion into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child. . . . . . . [O]ur holding today in no degree depends on the assertion of the religious interest of the child as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it is their right of free exercise, not that of their children, that must determine Wis- consin’s power to impose criminal penalties on the parent. . . . The children are not parties to this litigation.2 * * * On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition. It is the future of the student, not the future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student’s judgment, not his par- ents’, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be mas- ters of their own destiny. If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today.3 1 Homer, The Odyssey bk. XII, ll. 153-200, at 159-61 (Samuel Butler trans., A.C. Fifield 1900), http://classics.mit.edu/Homer/odyssey.html. 2 Wisconsin v. Yoder, 406 U.S. 205, 218, 230-31 (1972). 3 Id. at 244-46 (Douglas, J., dissenting) (footnotes omitted). Justice White, in his con- currence, actually adopted Justice Douglas’s conception of the problem. He concurred because he believed that eight years of grade school were enough to make autonomous choice possible and that the additional two years, which were all that was at stake in the case, did not matter enough to justify prosecution of the parents. He wrote: \\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 4 13-MAR-01 12:50 26 NEW YORK UNIVERSITY LAW REVIEW [Vol. 76:23 INTRODUCTION First Amendment law used to be easy for liberals.4 Back in the days when you had an individual—say, a Jehovah’s Witness,5 Klansman,6 or Communist7—who wanted to make a politically con- troversial statement, and a government actor silenced that person, all the cards in the liberal deck were stacked against the government. The actor doing the silencing was government. The person being si- lenced suffered a loss of expressive freedom in violation of her auton- omy. The loss of her expression was also a loss to robust democratic discourse. The two normative commitments animating the First Amendment—robust democratic discourse and personal autonomy— were aligned, and both pointed towards invalidation of the official ac- tion challenged. As Justice Brandeis put it, the commitment “to make men free to develop their faculties” served as a “means indispensable to the discovery and spread of political truth.”8 The information economy has made things more difficult. To cre- ate property rights in this economy, government must often prohibit It is possible that most Amish children will wish to continue living the rural life of their parents, in which case their training at home will adequately equip them for their future role. Others, however, may wish to become nuclear phys- icists, ballet dancers, computer programmers, or historians, and for these occu- pations, formal training will be necessary. There is evidence in the record that many children desert the Amish faith when they come of age. A State has a legitimate interest not only in seeking to develop the latent talents of its chil- dren but also in seeking to prepare them for the life style that they may later choose, or at least to provide them with an option other than the life they have led in the past. In the circumstances of this case, although the question is close, I am unable to say that the State has demonstrated that Amish children who leave school in the eighth grade will be intellectually stultified or unable to acquire new academic skills later. The statutory minimum school attendance age set by the State is, after all, only 16 . . . . I join the Court because the sincerity of the Amish religious policy here is uncontested, because the poten- tially adverse impact of the state requirement is great, and because the State’s valid interest in education has already been largely satisfied by the eight years the children have already spent in school. Id. at 239-41 (White, J., concurring). 4 I use the term “liberals” here to refer to those who hold some version of liberal political theory, rather than in the American colloquial sense of “more than slightly left of center.” 5 E.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 6 E.g., Brandenburg v. Ohio, 395 U.S. 444 (1969). 7 E.g., Dennis v. United States, 341 U.S. 494 (1951); Whitney v. California, 274 U.S. 357 (1927); Abrams v. United States, 250 U.S. 616 (1919); Schenck v. United States, 249 U.S. 47 (1919). 8 Whitney, 274 U.S. at 375 (Brandeis, J., concurring). \\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 5 13-MAR-01 12:50 April 2001] AUTONOMY, INFORMATION, AND LAW 27 speech.9 For example, government prohibits everyone from transmit- ting over wireless spectrum so that it can auction off the right to do so to those who then become spectrum “owners.”10 Government also prohibits all persons from picking up a good book they like and trans- lating it for their compatriots or making it into a play.11 It does so in order to create property rights in cultural materials, which are in- tended to foster a market for their creation. The central theoretical problem that this attribute of the informa- tion economy creates for traditional First Amendment theory is that the neat alignment of personal autonomy and democratic discourse— the two values most broadly understood to animate the Amend- ment—is shattered. Where once stood a state actor clamping down on an individual dissident now stands a private actor with power to prevent someone from speaking. The state’s role is generally be- nign—one that seeks to enhance, not restrict speech—but the means it employs involve prohibiting someone, often many, from speaking.12 The state might, for example, create copyrights to give information producers incentives to speak. But then the Washington Post and the Los Angeles Times, for example, can use those rights to prevent their readers from posting newspaper clippings on a Web-based political fo- 9 See Yochai Benkler, A Political Economy of the Public Domain: Markets in Infor- mation Goods vs. the Marketplace of Ideas, in Expanding the Bounds of Intellectual Prop- erty: Innovation Policy for the Knowledge Society 261, 279-85 (Rochelle Dreyfuss et al. eds., forthcoming 2001). 10 The potential viability of systems that allow many users to share the same slice of spectrum may change the constitutionality of this existing model. See Yochai Benkler & Lawrence Lessig, Net Gains: Will Technology Make CBS Unconstitutional?, New Repub- lic, Dec. 14, 1998, at 12 (explaining why spectrum wireless techniques could eliminate need for licensing or auctions, thereby rendering unconstitutional prohibition on unlicensed wireless transmission that is basis of licensing); see also Eli Noam, Spectrum Auction: Yes- terday’s Heresy, Today’s Orthodoxy, Tomorrow’s Anachronism—Taking the Next Step to Open Spectrum Access, 41 J.L. & Econ. 765, 768, 778-80 (1998) (describing rise of auction paradigm and exploring alternative open-access model). It is important to understand that the core regulatory move involved in spectrum regulation is the prohibition on all of us from transmitting without a license. See Benkler & Lessig, supra (stating that prohibition on transmitting that undergirds licensing regime may be unconstitutional once there is al- ternative); see also Noam, supra, at 770 (same). But see Timothy J. Brennan, The Spec- trum as Commons: Tomorrow’s Vision, Not Today’s Prescription, 41 J.L. & Econ. 791, 796-97 (1998) (criticizing Noam for arguing that corporations have “rights,” in particular, rights to communicate). 11 See 17 U.S.C. §106 (1994) (giving copyright holder exclusive right to make deriva- tive work). 12 See Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 390-94 (1999) (“[W]e are free to communicate at a given moment only to the extent we communicate using information that is in the public domain, we own, or we have permission to use for the proposed communication.”). \\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 6 13-MAR-01 12:50 28 NEW YORK UNIVERSITY LAW REVIEW [Vol. 76:23 rum.13 These same rights also enable the Church of Scientology to seize the computer files of a former member who criticized the church by posting its texts online.14 The state might recognize trademarks to facilitate commercial information exchange. But these rights enable the U.S. Olympic Committee to permit the use of the term “Special Olympics” to describe the events of athletes with disabilities and pro- hibit the use of the term “Gay Olympics” to describe the events of homosexual athletes.15 The state also might prohibit the owners of cable systems from selecting the programming on a certain percentage of their channels, not to censor, but to diversify and open up the video delivery medium so that more views can be presented to television viewers.16 The prohibition, then, would be aimed at alleviating a problem created by cable operators acting as “private censors.”17 Sophisticated legal commentators, such as Owen Fiss18 and Robert Post,19 disagree over how First Amendment law should re- spond to these cases but agree that in these matters democracy and autonomy conflict. In Fiss’s terms, democracy requires that the state intervene to improve public discourse, even at the expense of auton- omy.20 In Post’s terms, such “managerial” intervention undermines the very respect for autonomy that must animate a commitment to democratic discourse.21 The quandary created by this sense of deep conflict between democracy and autonomy is manifested in many dif- 13 L.A. Times v. Free Republic, No. CV 98-7840 MMM (AJWx), 2000 U.S. Dist. LEXIS 5669 (C.D. Cal. Mar. 31, 2000); see also Summary: L.A. Times and Washington Post v. Free Republic, at http://www.techlawjournal.com/courts/freerep/Default.htm (last modified Nov. 20, 2000) (compiling materials regarding case). 14 Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 923 F. Supp. 1231, 1239-40 (N.D. Cal. 1995). 15 S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 540 (1987); see also James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Informa- tion Society 145-48 (1996) (discussing case). 16 See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 224-25 (1997) (Turner II) (holding that state regulation does not violate First Amendment); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663-64 (1994) (Turner I) (“[A]ssuring that the public has access to a multi- plicity of information sources is a governmental purpose of the highest order, for it pro- motes values central to the First Amendment.”). 17 See Denver Area Educ. Telecomm. Consortium v. FCC, 518 U.S. 727, 773 (1996) (Stevens, J., concurring) (“It would inject federally authorized private censors into fora from which they might otherwise be excluded, and it would therefore limit local fora that might otherwise be open to all constitutionally protected speech.” (footnote omitted)). 18 E.g., Owen M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power 37-38 (1996). 19 Robert Post, Equality and Autonomy in First Amendment Jurisprudence, 95 Mich. L. Rev. 1517 (1997) (reviewing Fiss, supra note 18). R 20 Fiss, supra note 18, at 36-38. R 21 Post, supra note 19, at 1538-39. R \\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 7 13-MAR-01 12:50 April 2001] AUTONOMY, INFORMATION, AND LAW 29 ficult cases, most clearly those involving media regulation22 and intel- lectual property law.23 This Article begins the task of mediating this basic theoretical co- nundrum in thinking about the role of the First Amendment in an information economy. My goal is to identify the ways in which an autonomy-serving constitutional provision like the First Amendment should be seen as permitting, and sometimes even requiring, auton- omy-sensitive information policy. More specifically, I argue that a purely market-focused information policy—in particular one focused on exhaustive propertization of the physical, logical, and content lay- ers of the information environment—exacts a significant normative social cost in terms of personal autonomy. Part I offers what I hope can be a widely accepted and workable tool for normative evaluation of laws that affect autonomy by regulat- ing the flow of information to and from individuals. Because I am looking for workability and wide acceptance, my proposal settles on only two basic effects that should be considered in evaluating law in terms of autonomy. These are: (a) systematic effects of law that em- power one group of actors to exert control over the information envi- ronment within which others must choose their lives, and (b) systematic effects on the range of options that individuals in society perceive as open to them. Recognizing that more ambitious defenses of autonomy may find this focus too constraining, I nonetheless be- lieve that if sensitivity to these two effects can be shared widely by autonomy lovers, the implications for our normative evaluation of policy choices in the information arena will be significant. In Part II, I begin to apply these tools to the nearly exclusive focus of American information policy on property and commercialism as the creative forces of our information environment. This Part of the Article identifies an autonomy deficit that would be created if we had perfect property rights in communications infrastructure and in- 22 E.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (Turner II); Denver Area Educ. Telecomm. Consortium, 518 U.S. at 727; Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (Turner I); see also U.S. West, Inc. v. United States, 48 F.3d 1092 (9th Cir. 1994) (challenging constitutionality of Cable Franchise Policy and Communications Act of 1984, Pub. L. No. 98-549, §613(b), 98 Stat. 2779, 2785 (repealed 1996) (regulating common carri- ers)), vacated, 516 U.S. 1155 (1996); Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d 181, 185 (4th Cir. 1994) (same), vacated, 516 U.S. 415 (1996). 23 E.g., Harper & Row, Publishers, Inc., v. Nation Enters., 471 U.S. 539, 558 (1985) (suit over The Nation’s use of section from Gerald Ford’s memoir); L.A. Times v. Free Republic, No. CV 98-7840 MMM (AJWx), 2000 U.S. Dist. LEXIS 5669, at *1-*2 (C.D. Cal. Mar. 31, 2000) (suit to stop users from posting Los Angeles Times and Washington Post articles on website); Universal City Studios, Inc. v. Reimerdes, 98 F. Supp. 2d 449, 450 (S.D.N.Y. 2000) (action to enjoin defendants from posting computer program that de- feated plaintiffs’ encryption program). \\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 8 13-MAR-01 12:50 30 NEW YORK UNIVERSITY LAW REVIEW [Vol. 76:23 formation goods, by comparing such a regime to a commons or a regu- latory system where property is otherwise attenuated by use privileges, like carriage requirements. I develop the analysis in detail by reference to radio frequency spectrum allocation and to copyright. Part III looks at policies aimed at fostering commercial informa- tion production. I briefly explain why these policies tend to lead to a commercial, concentrated system of production that produces rela- tively homogenous information, undermining the possibility of the de- velopment of a decentralized system that includes diverse producers who provide their information and communications facilities in reli- ance on incentives other than profit maximization. I suggest that poli- cies aimed at establishing sustainable commons in information and communications resources, or at least at establishing access privileges to such resources, reduce the costs of becoming an information pro- ducer and effect a wider distribution of the capacity to be an informa- tion producer. Such policies likely will reveal to individuals many more meaningful options for living their lives, thereby increasing the actual capacity of individuals in society to be autonomous. I conclude by focusing on the implications of the analysis for American information policy. We are relying more heavily than ever before on property. We are increasing the costs of information pro- duction and concentrating that social function in the hands of organi- zations that aggregate consumer preferences and sell their products to the groups that will pay the most. These choices run the gamut from our focus on private, commercial provision of physical infrastructure, rather than on public or commons-based infrastructures,24 to our will- ingness to integrate infrastructure provision with content provision25 24 See Info. Infrastructure Task Force, The National Information Infrastructure: Agenda for Action, Executive Summary (1993), http://www.ibiblio.org/nii/NII-Executive- Summary.html (stating policy objective of promoting private-sector development of infor- mation infrastructure). This was the document that set out the first Clinton Administra- tion’s policy on infrastructure development. Its touchstone was recognition that the private sector was already deploying infrastructure, and it limited government’s roles to such activities as facilitating private sector deployment, redistribution, and standard-setting where necessary. There was no attempt to consider the possibility or validity of a govern- ment-provided infrastructure of first resort, like the highways, or like the Internet as it had been until the 1990s. See generally Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Towards Sustainable Commons and User Access, 52 Fed. Comm. L.J. 561, 572-75 (2000) (describing systematic choices regarding “professional- ization” or “commercialization” of physical infrastructure). 25 For example, while in the early 1990s the Federal Communications Commission thought to make telephone infrastructure a video common carrier, see Telephone Com- pany-Cable Television Cross-Ownership Rules, 7 F.C.C.R. 5781, 5783 (1992) (second re- port and order), by 1996 Congress had converted this to a model whereby telephone companies provide their own content alongside that of competitors. See Telecommunica- tions Act of 1996, Pub. L. No. 104-104, §304, 110 Stat. 56, 125 (1996) (codified at 47 U.S.C. \\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 9 13-MAR-01 12:50 April 2001] AUTONOMY, INFORMATION, AND LAW 31 and our focus on commercial, information-goods sale as the primary model of information production and exchange that our legal system supports.26 These choices are driving the organization of information production and exchange in the digitally networked environment to- wards a model that dampens the beneficial effects the technology can have on increasing personal autonomy. In fact, it may increase the potential of this technological shift to subject many users to the influ- ence of a few large, commercial media and communications compa- nies. Whether the benefits of these choices, whatever they may be, justify this normative cost is a question with which we must come to grips as a polity. But we will not evaluate the paths open to us cor- rectly until we see all that is at stake. I AUTONOMY, LAW, AND INFORMATION FOR CONTEXT- BOUND INDIVIDUALS Although “autonomy” is quite central to our intuitions about lib- erty and dignity generally,27 and is widely seen as one of the central animating values of the First Amendment,28 it has remained a surpris- §549 (Supp. III 1997)) (creating open video system). A similar set of issues is now in- volved in the question of whether cable companies will be required to provide meaningful access to competitors to provide Internet services. See Press Release, Federal Communi- cations Commission, FCC Chairman to Launch Proceeding on “Cable Access” (June 30, 2000), http://www.fcc.gov/Bureaus/Cable/News_Releases/2000/nrcb0017.html (announcing FCC chair’s proposal that FCC begin proceeding on issue of multiple Internet service providers accessing cable company’s infrastructure). See generally Deborah A. Lathen, FCC, Broadband Today (1999), http://www.fcc.gov/Bureaus/Cable/Reports/broad- bandtoday.pdf (describing policy questions raised by cable access). 26 See generally Benkler, supra note 9. R 27 Richard Fallon suggests that the Kantian tradition treats autonomy as a super-value, in the sense that all values are worth pursuing “because rational, autonomous agents find them worth pursuing.” Richard H. Fallon, Jr., Two Senses of Autonomy, 46 Stan. L. Rev. 875, 876 & n.3 (1994). “‘[A]ll values are made so by the free acts of men, and called values only so far as they are this . . . .’” Id. at 876 n.3 (quoting Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty 118, 137 (1969)). 28 See, e.g., C. Edwin Baker, Human Liberty and Freedom of Speech 47-51 (1989) (describing “individual self-fulfillment and participation in change” as key First Amend- ment values); David A.J. Richards, Toleration and the Constitution 165-78 (1986) (describ- ing “right to conscience” as underlying First Amendment); Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty, 59 U. Chi. L. Rev. 225, 233 (1992) (“Au- tonomy is the foundation of all basic liberties, including liberty of expression.”); Robert Post, Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. Colo. L. Rev. 1109, 1120-23 (1993) [hereinafter Post, Meiklejohn’s Mistake] (stating that “[t]he ideal of autonomy essentially distinguishes First Amendment jurisprudence from other areas of constitutional law”); Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204, 215-22 (1972) (arguing that individual right to autonomy may “support a healthy doctrine of freedom of expression”); Post, supra note 19, at 1521, 1524- R 25 (arguing that one primary purpose of First Amendment is to foster “collective self- \\Server03\productn\N\NYU\76-1\NYU101.txt unknown Seq: 10 13-MAR-01 12:50 32 NEW YORK UNIVERSITY LAW REVIEW [Vol. 76:23 ingly nebulous and ill-defined term in philosophical inquiry.29 The primary implication of this vagueness for policymaking is that it makes it difficult to extract from “autonomy” a broadly acceptable normative guide to evaluating practical policymaking, because it means so many different things to different people. My goal here is therefore not so much to develop a widely attractive, crisper philosophical conception of autonomy, as to propose a widely accepted set of tools for evaluat- ing the autonomy implications of proposed policies. These tools are drawn from what I understand to be a plausible, if not quite so widely shared, conception of autonomy.30 My aim in this Part is to suggest how a conception of autonomy sensitive to the context within which individuals must choose would counsel us to evaluate law. Part I.A deals with what autonomy for context-bound individuals means and how it is affected by law. Part I.B then focuses on the relationship between information and auton- omy and on what attributes of information law are worth examining for one who respects autonomy. Part I.C then takes on the task of delimiting the province of autonomy as a measure of law and policy, such that it can be attractive to a wider range of autonomy lovers than those who would adopt fully the conception of context-bound auton- omy from which I derive it. A. Law and Autonomy for Context-Bound Individuals Before one can describe the relationship between law and auton- omy, it is important to recognize that the concept of autonomy can determination” and that this in turn must “entail[] the value of individual autonomy” (em- phasis added)). An earlier version of Post, Meiklejohn’s Mistake, supra, was published as Robert Post, Managing Deliberation: The Quandary of Democratic Dialogue, 103 Ethics 654 (1993). 29 See Gerald Dworkin, The Theory and Practice of Autonomy 6 (1988) [hereinafter Dworkin, Theory and Practice] (“[A]utonomy is used in an exceedingly broad fashion. . . . About the only features held constant from one author to another are that autonomy is a feature of persons and that it is a desirable quality to have.”); Joel Feinberg, Harm to Self 27-51 (1986) (describing four categories of meaning for “autonomy” and twelve desiderata that in some sense are measures of “autonomy”); John Christman, Constructing the Inner Citadel: Recent Work on the Concept of Autonomy, 99 Ethics 109, 109-16 (1988) (describ- ing various conceptions of autonomy); see also Gerald Dworkin, The Concept of Auton- omy, in Science and Ethics 203 (Rudolf Haller ed., 1981) (sketching conception of autonomy later rejected by author in Dworkin, supra). 30 There is of course a methodological conundrum in my project which has to do with the fact that it is a pragmatic project for the introduction into policymaking of a value whose primary appeal is deontological. I am not sure I want to try to find a nonpragmatic answer to this conundrum; in which case the answer is that autonomy matters because we care about it, and if the reasons we use to explain why we care about it take on largely a deontological form, then it is in those terms that we must express the parameters we use to evaluate the effects of law on autonomy.