Academic journal article
By Bambauer, Jane
Stanford Law Review , Vol. 66, No. 1
INTRODUCTION I. WHAT Is "DATA," AND WHAT IS "SPEECH"? A. Data B. Speech II. DATA IN FIRST AMENDMENT PRECEDENT A. Existing Data 1. Gleanings from privacy law 2. Gleanings from commercial speech regulations 3. Gleanings from copyright law B. Data Creation as Nonexpressive Conduct C. Data Creation as Expressive Conduct III. THE RIGHT TO CREATE KNOWLEDGE A. The Negative Right to Create Knowledge B. Data and First Amendment Objectives 1. Marketplace of ideas and public good theories 2. Deliberative democracy and a check on state power 3. Self-Determination C. The Level of Scrutiny IV. COPING WITH SCRUTINY A. Concern 1: Scrutiny Will Kill Privacy and Other Good Things B. Concern 2: If Data Is Speech, Regulators Are Hamstrung C. Concern 3: Scrutiny Is Subjective at Best, Political at Worst CONCLUSION
[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought....
--Justice Oliver Wendell Holmes, Jr. (1)
When does factual information become speech? The appealing, simple answers reside at the extremes.
Perhaps information is always speech. After all, information communicates, educates, and persuades. A single plain fact can do more to change minds and alter debates than a thousand opinions. But this rule goes too far. There are many times that an event will leave a mark that has the potential to retell its story. A car may careen into a barrier and leave a streak of paint. Long after the car is towed, the streak states, in a way, when and where the crash occurred, how fast the car was traveling during impact, and what color the car was. The streak of paint can be received and interpreted by a human to create knowledge. (2) But if a city repainted the barrier, we would not interpret this as a decision related to speech. Likewise a crack in the sidewalk might tell the story of a frost, but a municipal ordinance requiring property owners to maintain their sidewalks would not be an act of censorship. Every cell contains DNA, the body's ultimate archive of information, and yet the proper disposal of used syringes does not, and should not, implicate First Amendment scrutiny.
Since data is expressed in alphanumeric symbols, it certainly looks a lot more like traditional speech than a crack in the sidewalk. (3) However, conceptually it is sometimes not so far off. When data is the byproduct of other events and services--transactions between a home computer and a website's server, or between a cell phone and a cell tower--these records are no different from other unanticipated marks created by the bustle of life. They have no intended author, and no intended audience. They are mere footprints.
If information isn't always speech, then perhaps it is never speech. After all, the quintessential First Amendment litigant expresses some unpopular idea or opinion. Maybe the domain of the First Amendment is opinion, and other products of human subjectivity. This rule runs into unsalvageable problems even more quickly than the last. Some of the most important modern speech cases concerned the unadorned reporting of raw information. The Supreme Court protected the New York Times's distribution of the Pentagon Papers from prior restraint by the federal government on the basis of its First Amendment rights to do so. (4) The New York Times had received a leak of the Pentagon Papers--a report created by the Department of Defense to document the U.S. involvement in the Vietnam War. Many details in the report conflicted with the information that the Johnson Administration had told the public, so the Pentagon Papers were significant not only for the details within them, but also for the inevitable inference that President Johnson had deceived Americans. Justices Black and Douglas had no trouble recognizing the speech interests in raw facts--the fact of the Pentagon Papers' existence and the facts that were reported in them. …