The Revisability Principle

Abstract

Debates over the “right to be forgotten” loom ever larger. Europe increasingly recognizes such a right. To many in the United States, however, a right to be forgotten appears misguided and deeply foreign, inconsistent with the First Amendment’s commitment to uninhibited, robust, and wide-open exchange. But even here, the growing realization that everything people do can be, and often is, permanently recorded and stored has begun to provoke growing disquiet.This Article has two purposes. The first is to explain the principle rooted in American law and culture that most strongly supports an American right to be forgotten — a deep constitutional commitment to what this Article calls the “revisability principle.” It is 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 past and in the future — is powerfully constrained. Personal autonomy is abridged when individuals lose the capacity to control, to some significant degree, their own destiny by fashioning a conception of themselves through successive decisions about who they wish to be through deliberate choices that they make. The second purpose of this Article is to explain how emerging technologies place unprecedented pressures on the revisability principle. Technologies and social practices that result in the permanent storage, ready access, and widespread dissemination of past mistakes or even prior identities that a person in the present hopes to leave behind impinges on the principle of revisability by making it more and more difficult to disassociate oneself from past choices that no longer reflect one’s self-conception. 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. A capacity to engage in self-revision is critical to fully realizing the First Amendment’s commitment to debate that is uninhibited, robust and wide-open.