Free Speech vs. Information Privacy: Eugene Volokh's First Amendment Jurisprudence
Schwartz, Paul M., Stanford Law Review
Eugene Volokh's masterful contribution to this symposium examines caselaw, doctrine, and theory to reach the conclusion that "information privacy rules are not easily defensible under existing free speech law."(1) Although permitting a narrow exception for privacy protection through contract, Volokh casts doubt on the constitutionality of the common law privacy tort of invasion of privacy and most governmental statutes, existing or potential, that impose information privacy on the private sector.(2) His chief worry, as he claims at a number of junctures, is less the legal protection of personal information per se than its accompanying twisting and stretching of the First Amendment. Volokh argues that the government's safeguarding of information privacy endangers a wide range of speech unrelated to personal data.(3)
To do justice to Volokh's article, I should first draw attention to its magisterial contrasting of free speech and information privacy. Volokh describes a phenomenon of the greatest significance in the Information Age: The United States has a higher law of freedom of expression, a law that functions well as a force for sweeping information into the public domain. However, it is underdeveloped concerning checks on communication in the name of personal privacy. He depicts the development of a First Amendment that emphasizes the rights of private parties "to communicate personal information about [us]."(4) His article is the clearest expression that we have of the conflict between free speech and information privacy in the context of the First Amendment.
In the hopes of furthering Volokh's exploration of the nexus between the First Amendment and information privacy law, I wish to concentrate on two aspects of his article and then raise one additional issue that it provokes, but does not examine in any detail. First, I will evaluate one of his core ideas, which is that fair information practices constitute, as Volokh memorably puts it, "a right to have the government stop people from speaking about [you]."(5) Second, I will use health care privacy as a test of Volokh's claims regarding both the contract exemption under the First Amendment and the sharply negative consequences of information privacy for free speech. Third, I will argue that his approach shifts power to private commercial entities and restricts some ability of legislatures to limit explicit privacy-robbing contracts.
I. FAIR INFORMATION PRACTICES AS A SILENCING OF SPEECH
A central idea in Volokh's Freedom of Speech is that, when government grants rights to information privacy that extend to the private sector, it has created a speech restraint. In other words, when the common law's privacy tort or statutory law creates fair information practices, the result is the imposition of silence on speakers.(6) Volokh examines potential justifications for such action in areas of law and theory ranging from contract, property, and commercial speech, to "speech on matters of private concern."(7) In all these areas save contract, Volokh finds existing justifications to be insufficient and "information privacy speech restrictions ... sufficiently troubling" to merit opposition.(8) As I will explain below in Part II, however, the contract exception for privacy protection is of limited use, and, as a result, Volokh opposes most privacy protections possible for the private sector.
Information privacy law is troubling for Volokh because it substitutes either judge-made common law or statutes for the strictures of the Constitution. In his estimation, the Framers already expressed the constitutional benchmark for fair information practices in the First Amendment. Their standard bars the government from deciding "what subjects speakers and listeners should concern themselves with."(9) As Volokh states, "[w]e already have a code of `fair information practices,' and it is the First Amendment ...."(10)
Volokh examines and rejects many possible justifications for safeguarding information privacy. …