Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking about You

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Privacy is a popular word, and government attempts to "protect our privacy" are easy to endorse. Government attempts to let us "control ... information about ourselves"(1) sound equally good: Who wouldn't want extra control? And what fair-minded person could oppose requirements of "fair information practices"?(2)

The difficulty is that the right to information privacy--my right to control your communication of personally identifiable information about me--is a right to have the government stop you from speaking about me. We already have a code of "fair information practices," and it is the First Amendment, which generally bars the government from controlling the communication of information (either by direct regulation or through the authorization of private lawsuits(3)), whether the communication is "fair" or not.(4) While privacy protection secured by contract is constitutionally sound, broader information privacy rules are not easily defensible under existing free speech law.

Of course, the Supreme Court and even lower courts can create new First Amendment exceptions or broaden existing ones; and if the courts did this for information privacy speech restrictions, can't say that I'd be terribly upset about the new exception for its own sake. Speech restrictions aimed at protecting individual privacy just don't get my blood boiling. Maybe they should, but they don't. Perhaps this is because, from a selfish perspective, I'd like the ability to stop others from talking about me, and while I wouldn't like their stopping me from talking about them, the trade-off might be worth it.

Nonetheless, I'm deeply worded about the possible downstream effects of any such new exception. Most of the justifications given for information privacy speech restraints are directly applicable to other speech controls that have already been proposed. If these justifications are accepted in the attractive case of information privacy speech restrictions, such a decision will be a powerful precedent for those other restraints and for still more that might be proposed in the future.

Thus, for instance, some argue that information privacy laws are defensible because they protect an intellectual property right in one's personal information.(5) Such arguments don't fit well into the intellectual property exceptions to the First Amendment, which generally don't entitle anyone to restrict the communication of facts. And if we are to consider extending the existing exceptions, we should also consider that an intellectual property rights rationale is already being used as an argument for other speech restrictions: the proposed database protection law, the attempts to expand the right of publicity, and more. Before wholeheartedly endorsing the principle that calling certain information "intellectual property" lets the government restrict speech communicating that information, we should think about the consequences of such an endorsement.

Similar problems confront the arguments that information privacy speech restrictions are constitutional because they restrain only commercial speech,(6) restrain only speech that is not on matters of public concern,(7) are narrowly tailored to a compelling government interest in protecting people's dignity, emotional tranquility, or safety,(8) are needed to protect a countervailing civil right,(9) or pass muster under a "context-sensitive balancing."(10) First, for these arguments to succeed, existing First Amendment precedents would have to be substantially stretched. Second, the stretching may make the doctrine loose enough to give new support to many other restrictions. Bans on sexually themed speech might become justified under a "no public concern" rationale. Campus speech codes might be justified under a "countervailing civil right" rationale or a "narrowly tailored to a compelling government interest" rationale. Restrictions on online discussion about economic matters or on consumer complaints might be justified under a broadened commercial speech rationale. …