Author: Nita Farahany Source: https://nitafarahany.substack.com/p/can-you-pay-attention Published: January 26, 2026
A Substack essay by Nita Farahany, published January 26, 2026, documenting Class 2 of her Advanced Topics in AI Law and Policy course (Class 2 of roughly 30). The class opens the Architecture of Attention module and asks whether attention is a legal right distinct from privacy or speech, framing the following weeks as a search for whether the law has any tool to recognize the harm of attention capture at all.
Summary of argument
Farahany reframes attention from a personal-discipline issue ("just put your phone away") into a structural one: a finite cognitive resource being competitively harvested by systems whose business models require capturing it. She argues that the personal-discipline framing obscures the structural asymmetry between individuals and the platforms whose revenue depends on extracting their attention.
On the conceptual point, she contends that William James's "everyone knows what attention is" no longer holds: attention has been operationalized as a measurable economic input by platforms.
The essay introduces a doctrinal question through Packingham v. North Carolina (2017), which recognized social media as the modern public square, a place individuals have a constitutional interest in accessing. Farahany notes that the Court has said nothing about whether individuals have any interest in not having their attention captured once they enter that square.
She distinguishes a right to attention from a right to direct one's attention. Multiple legal systems have begun to recognize a right to receive information and to participate in public discourse, but Farahany asks whether there is also a right to direct one's attention and not have it commandeered, observing that no US doctrine clearly recognizes one.
Key claims
The essay surveys three legal candidates for recognizing the harm, each said to capture part of it but not the whole:
- Privacy, addressing the data-collection layer beneath attention capture.
- Consumer protection, addressing the design-feature layer.
- The First Amendment, addressing the speech-environment layer.
Relationships
- part-of: Nita Farahany Advanced Topics course (Class 2 of ~30)
- introduces: attention-as-right framing (planned concept page)
- related: Cognitive Liberty, AI Mental Health and Psychological Harm
- previous: Inside My Advanced Topics Class 1.3: Protecting Autonomy in Law, Take 1 (Farahany, January 2026) next: Inside My Advanced Topics Class 2.2: The Attention Evidence Gap (Farahany, January 2026)