Free speech vs. information privacy: Eugene Volokh's First Amendment jurisprudence.

• Author: Schwartz, Paul M.

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.

1. 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. He pays less attention, however, to the underlying concept of fair information practices. For him, these measures simply represent limitations on speech. The traditional idea of these standards is different, however, from Volokh's presentation of them.

   During the 1970s, the United States developed fair information practices as its leading tool for privacy protection.(11) By the end of that decade, fair information practices had coalesced into their current form.(12) Although these standards differ in details, sometimes crucially, depending on the precise context of data processing, fair information practices generally require: (1) the creation of a statutory fabric that defines obligations with respect to the use of personal information; (2) the maintenance of processing systems that are understandable to the concerned individual (transparency); and (3) the assignment of limited procedural and substantive rights to the individual.(13) These standards also include a fourth element: (4) the establishment of effective oversight of data use, whether through individual litigation (self-help), a government role (external oversight), or some combination of these approaches.(14)

   When the government requires fair information practices for the private sector, has it created a right to stop people from speaking about you? As an initial point, I emphasize that the majority of the core fair information practices do not involve the government preventing disclosure of personal information. To return to the schema in the preceding paragraph, fair information practices one, two, and four regulate the business practices of private entities without silencing their speech. No prevention of speech about anyone takes place, for example, when the Fair Credit Reporting Act of 1970 requires that certain information be given to a consumer when an "investigative consumer report" is prepared about her.(15)

   These nonsilencing fair information practices are akin to a broad range of other measures that regulate information use in the private sector and do not abridge the freedom of speech under any interpretation of the First Amendment. The First Amendment does not prevent the government from requiring product labels on food products or the use of "plain English" by publicly traded companies in reports sent to their investors or Form 10-Ks filed with the Securities and Exchange Commission.(16) Nor does the First Amendment forbid privacy laws such as the Children's Online Privacy Protection Act which assigns parents a right of access to their children's online data profiles.(17) The ultimate merit of these laws depends on their specific context and precise details, but such experimentation by the State should be viewed as noncontroversial on free speech grounds.(18)

   Nevertheless, one subset of fair information practices does correspond to Volokh's idea of information privacy as the right to stop people from speaking about you. As part of the State's assignment of limited procedural and substantive fights to the individual--the third category of fair information practices--privacy laws may contain disclosure restrictions.(19) Consider one example of such a statutory disclosure restriction, the Video Privacy Protection Act of 1988, also known as the Bork Bill.(20) Congress enacted this statute after a Washington, D.C., periodical published a list of then Judge Robert Bork's video rentals.(21) Unless a disclosure falls within a narrow range of exceptions, the Bork Bill prohibits the release of a consumer's name linked to the title, description, or subject matter of any videotape that she has rented or purchased from an entity subject to the Act.(22) Viewed through the Volokhian perspective, this statute creates a right to stop video stores from talking about you and your video rentals.

   In my judgment, however, the Bork Bill and similar privacy statutes do not represent an unconstitutional silencing of parties under the First Amendment. Rather, so long as they are viewpoint neutral, these laws are a necessary element of safeguarding free communication in our democratic society.(23) Volokh's reading of the First Amendment seeks to radically and permanently enshrine public discourse as the predominant sphere of communication. By shielding existing and possible future portals to this domain from almost all legal restrictions, Volokh furthers a process by which any topic or record can become the source of public scrutiny and debate. Yet, no less than public discourse, a democratic society depends on other realms of communication. As an important step in establishing the foundations of a modern information privacy jurisprudence, Robert Post provided a map of these other domains of communicative discourse, which he terms "community" (where speech can be regulated in the interests of civility and dignity) and "bureaucratic organization" (where speech can be regulated for instrumental attainment of explicit objectives).(24)

   Building on Post's work, I wish to argue that fair information practices can best be thought of as fulfilling two normative roles regarding communicative discourse. First, these rules help...