The Foundation of Selective Incorporation

Selective incorporation is the judicially developed process of applying the Bill of Rights to state and local governments through the Due Process Clause of the Fourteenth Amendment. The doctrine emerged from a long constitutional contest over whether the first ten amendments bound only the federal government. In Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights applied solely to the federal government. For nearly a century, state governments could infringe on rights that today we consider fundamental, such as free speech or protection against unreasonable searches.

The turning point came in Gitlow v. New York (1925), when the Court declared that “freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.” This opened the door for case-by-case incorporation. Over the next several decades, the Supreme Court selectively incorporated nearly all provisions of the Bill of Rights, including the Fourth Amendment’s exclusionary rule (Mapp v. Ohio, 1961), the Fifth Amendment’s privilege against self‑incrimination (Malloy v. Hogan, 1964), and the Sixth Amendment’s right to counsel (Gideon v. Wainwright, 1963).

The process was not wholesale; certain provisions, like the Second Amendment’s right to keep and bear arms, were incorporated as late as McDonald v. City of Chicago (2010). What unifies these decisions is the principle that a right must be “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition” before it binds the states. This incremental, pragmatic method gave the Constitution flexibility while preserving federalism.

Digital Privacy and the Fourth Amendment

The Fourth Amendment protects against unreasonable searches and seizures. Long before digital evidence became ubiquitous, the Supreme Court held in Katz v. United States (1967) that the Amendment’s reach depends on whether a person has a “reasonable expectation of privacy.” That standard has proven critical for modern surveillance technologies. In Riley v. California (2014), the Court unanimously held that police generally cannot search the contents of a cell phone without a warrant, recognizing that such devices contain “the privacies of life.” A few years later, Carpenter v. United States (2018) extended Fourth Amendment protection to historical cell‑site location information, rejecting the third‑party doctrine that had allowed the government to obtain such records without probable cause.

These decisions illustrate how selective incorporation in the digital era requires continuously redefining what constitutes a “search.” The government’s ability to access encrypted communications, data stored in the cloud, and metadata from internet service providers raises questions that cannot be fully answered by eighteenth‑century text alone. Scholars have debated whether the Fourth Amendment should be incorporated to cover novel surveillance methods, such as mass government access to data held by technology companies. The Court’s willingness to adapt the reasonable‑expectation‑of‑privacy test to new facts will likely remain the vehicle through which digital privacy rights are applied to state governments.

State legislatures have also acted. Several states have enacted their own digital privacy laws, such as California’s Electronic Communications Privacy Act (CalECPA), which requires a warrant for government access to electronic communications and location data. These laws do not rely on the Fourth Amendment but rather create statutory protections that mirror and sometimes exceed federal requirements. Over time, a patchwork of state laws may push the Court to incorporate a baseline digital privacy right under the Fourteenth Amendment, ensuring uniform protection across the country.

The Third‑Party Doctrine Under Pressure

The traditional rule—that information voluntarily shared with a third party (like a phone company or bank) receives no Fourth Amendment protection—is directly challenged by modern data practices. People today necessarily share vast amounts of data with internet service providers, social media platforms, and app developers. Carpenter was a major departure from that doctrine for cell‑site data, but the Court left open whether other categories of digital records (e.g., email contents stored by a provider) deserve similar protection. A future incorporation question may be whether the states must respect a warrant requirement for all digital data that reveals intimate details of a person’s life. Lower courts are already grappling with this: the Massachusetts Supreme Judicial Court held that the state constitution provides broader digital privacy than the federal Fourth Amendment. Such divergence may eventually encourage the U.S. Supreme Court to settle the matter through selective incorporation.

Free Expression in the Digital Sphere

The First Amendment’s protection of speech and press has long been incorporated against the states. But the application of that ancient freedom to the internet—especially to social media platforms run by private corporations—creates a new set of tensions. In the physical world, restrictions on speech in public forums are subject to strict scrutiny. Online, government‑run websites and public officials’ social media pages can function as limited public forums. The Court held in Packingham v. North Carolina (2017) that a state law banning registered sex offenders from accessing social media violated the First Amendment, as social media are “the modern public square.” That decision incorporated free‑speech principles into cyberspace but left open many questions about the boundaries of government‑mandated moderation.

A more contentious issue is whether the First Amendment restrains private platforms—like Facebook or Twitter—when they moderate content. The Supreme Court has long held that the First Amendment applies only to government action, not private conduct. However, as states pass laws that attempt to dictate how platforms moderate, the line between state action and private control blurs. In Moody v. NetChoice, LLC (2024), the Court struck down parts of Florida’s social media law that restricted platforms’ ability to remove certain posts, finding that the law likely violated the platforms’ own First Amendment rights. Conversely, in NetChoice v. Paxton (2024), the Court upheld a Texas law that prohibited platforms from moderating based on viewpoint. The tension between these rulings shows that the incorporation of free speech guarantees into the digital realm is far from settled.

Another frontier is the application of the “right of the people peaceably to assemble” to online gatherings. The internet enables massive digital protests and coordinated speech. The state’s ability to monitor or disrupt such assemblies raises Fourth and First Amendment concerns. Selective incorporation will need to address whether digital assemblies are entitled to the same constitutional protections as physical ones. This is particularly important as states adopt laws requiring age verification for social media, which can chill anonymous speech and restrict access to adult‑oriented content—both of which implicate First Amendment interests that have already been incorporated.

Emerging Digital Rights and Due Process

Beyond privacy and speech, technology creates new rights that do not neatly fit into existing constitutional categories. For instance, the “right to be forgotten” (established in European Union law) has no direct U.S. equivalent, but some state laws require platforms to delete certain user data upon request. Could a state’s failure to provide such a mechanism violate due process? The Court has incorporated procedural due process requirements against the states, meaning that when a government deprives an individual of life, liberty, or property, it must provide notice and an opportunity to be heard. As more of our lives move online—including access to credit, employment, and education—algorithms that make decisions based on personal data may create “liberty” or “property” interests that trigger due process protections.

In Goldberg v. Kelly (1970), the Court held that termination of welfare benefits required a pre‑deprivation hearing. By analogy, a state‑administered algorithm that blocks a citizen from accessing a government website or denies a license could violate due process if the affected individual has no meaningful chance to challenge the decision. The Court’s recent decision in Biden v. Nebraska (2023) touched on the importance of clear statutory authority before government action, reinforcing the principle that due process is not a loose concept but a concrete procedure. Whether the Court will incorporate a digital due process right—requiring states to provide algorithmic transparency and human review—remains to be seen.

Data breach notifications are another site of emerging rights. Forty‑eight states have laws requiring companies to notify individuals when personal data is compromised. If a state fails to enforce such a law, or if its law is too weak, does the Fourteenth Amendment’s protection of property rights require more? In Spokeo, Inc. v. Robins (2016), the Court held that a bare procedural violation of a federal statute does not confer Article III standing without concrete injury. This suggests that incorporation of a right to data security may be limited unless a plaintiff can show actual harm. Yet as identity theft and digital fraud become more common, the concept of “property” in personal data may evolve. The Court may eventually need to decide whether the Due Process Clause incorporates a right to a minimal level of data protection against state‑level breaches.

The Future of Selective Incorporation in a Digital Context

Selective incorporation has always been a dynamic mechanism. In the twentieth century, it expanded civil liberties. In the twenty‑first, it will likely be tested by technologies that were unimaginable to the Framers. The process may take one of three paths.

Path One: Incorporation by Analogy

The Court could continue to map traditional rights onto digital equivalents. For example, the Fourth Amendment’s protection of papers and effects might be extended to emails and digital files; the First Amendment’s protection of assembly could cover virtual meetings. This path preserves doctrinal continuity and places new issues within familiar frameworks. The risk is that analogy can be stretched too thin, leading to confusing or inconsistent rules.

Path Two: Creation of New Rights

The Court could recognize that digital technologies require rights that have no clear analog in the Bill of Rights. For instance, the right to algorithmic transparency or the right to be free from predictive policing based on flawed data might be deemed fundamental to “ordered liberty.” This would be a departure from the original text, but the Fourteenth Amendment’s due process clause has always had a substantive dimension (Roe v. Wade, 1973; Obergefell v. Hodges, 2015). The Court would have to decide whether such new rights are “deeply rooted in this Nation’s history”—a high bar that could be difficult to meet for technologies that are only a few decades old.

Path Three: State‑Level Innovation

Unable or unwilling to act decisively, the Supreme Court may leave digital rights largely to the states. Many states already have constitutions that guarantee explicit privacy rights. The California Constitution, for example, has a right to privacy not found in the federal Constitution. If states continue to experiment, they may create a laboratory for digital rights that eventually shapes federal incorporation. The Court could then pick and choose which innovations to elevate to a constitutional floor. This is essentially how selective incorporation worked historically: state practices often influenced the Court’s determination of what rights are fundamental.

Implications for Society and Governance

The direction the Court takes will profoundly affect how citizens interact with both government and private entities. If the Court incorporates strong digital privacy rights, states will be required to obtain warrants before accessing digital data, search cell phones incident to arrest, or deploy facial‑recognition technology in public places. If the Court declines to incorporate, a patchwork of protections will persist, with some residents enjoying robust rights and others none.

First Amendment incorporation in the digital space is equally consequential. A decision that platforms’ content‑moderation decisions are themselves protected speech would limit state power to regulate social media. A contrary ruling could subject platforms to state‑imposed neutral moderation rules, potentially curbing misinformation but also enabling censorship. The incorporation of assembly rights would determine whether states can monitor or shut down online protests without violating the Constitution.

Finally, due process incorporation in the digital age would require states to provide meaningful procedures when algorithms affect important interests. The use of automated decision‑making in welfare systems, criminal risk assessments, and child welfare investigations is growing. Without constitutional oversight, individuals may be harmed by opaque systems with no recourse. The Supreme Court’s willingness to extend the principle of Goldberg v. Kelly to digital contexts will be a defining civil‑rights issue of the next decade.

The balance between technological innovation and individual liberty has always been a central task of American constitutional law. Selective incorporation provides a flexible tool to ensure that fundamental rights are not left to the mercy of state or corporate power. As digital technologies become woven into every aspect of life, the question is not whether these rights will be incorporated—but how and when. The answer will shape the future of freedom in the digital era.

For further reading, see the Supreme Court’s opinion in Carpenter v. United States and the analysis of digital privacy in Riley v. California.