In Short:

The future of attention relies upon the lessons of its past, and explicitly recognizing the so far hidden right to attention provides better ways of shaping its future. 

Abstract

Legal scholars have largely neglected attention as a subject of legal rights, even as it has become one of the most valuable economic resources of the modern era. This Article argues that a right to attention has existed implicitly in American law since the early twentieth century, emerging in response to technological, social, and economic shifts in that period that made attention both increasingly valuable and increasingly impinged upon. A set of court decisions in private law doctrines around property and public law doctrines around free speech emerged in this period that can only be explained by reference to an implicit right to attention. Drawing on these sources, this Article explores the ways in which judges and lawmakers built out a set of legal protections that enabled people to invoke the law to protect their own attention while avoiding stifling the sometimes disruptive conduct of others. In particular, I show that in private law, courts began recognizing attentional nuisances, non-trespassory invasions of land that caused only attentional, not physical, harm, thereby creating a framework for protecting a person’s attention on her own land. In public spaces, the new right to attention came into conflict with also emerging free speech rights, which may require the ability to attract others’ attention in order to express oneself to them. There, the Supreme Court sought a balance between the interests in controlling one’s own attention and attracting the attention of others through the development of frameworks like the time, place, or manner doctrine. These methods allowed governments to try to regulate attention-grabbing stimuli without directly regulating speech, and through the uneven development of listeners’ rights. In closing, I argue that the right to attention developed in the early twentieth century provides a foundation upon which a modern right to attention addressed to the attention economy could be developed. This modern right should be both rooted in the experience of the past and capable of meeting the novel challenges presented by digital technology and artificial intelligence, which promise another epochal technological revolution like that which gave rise to the right a century ago. Drawing out the right to attention buried in the case law gives scholars, lawmakers, and the public a set of tools that they can use to decide how to adapt it to the demands of the present. The future of attention relies upon the lessons of its past, and explicitly recognizing the so far hidden right to attention provides better ways of shaping its future.  

About the author

Nicholas Caputo

Assistant Professor, School of Government and Policy

Caputo’s work focuses on frontier AI regulation, legal alignment, open source AI, and how to build governance institutions for the AI era.