Freedom of speech and information privacy: the troubling implications of a right to stop people from speaking about you.

• Author: Volokh, Eugene

INTRODUCTION

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. Restrictions on online distribution of information about encryption or drugs might be justified under a crime prevention rationale. And who knows what might be allowed under "context-sensitive balancing," which has in practice long been a tool for judges to justify a wide range of speech restrictions?

In making these arguments, I will try to identify concrete, specific ways--doctrinal, political, and psychological--in which upholding certain kinds of information privacy speech restrictions could affect the protection of other speech. I will try to avoid making general slippery slope arguments of the "today this speech restriction, tomorrow the Inquisition" variety; the recognition of one free speech exception certainly does not mean the end of free speech generally, or else all would have been lost long ago. But slippery slope concerns are still quite sensible, especially when accepting a proposed speech restriction entails accepting a principle that is broader than the particular proposal and that can logically cover many other kinds of restraints.(11) Our legal system is based on precedent. Our political life is in large measure influenced by arguments by analogy. And many people's normative views of free speech are affected by what courts say: If the legal system accepts the propriety of laws mandating "fair information practices," people may becomes more sympathetic to legal mandates of, for instance, fair news reporting practices or fair political debate practices.(12)

This article is an attempt to consider, as concretely as possible, the possible unintended consequences of various justifications for information privacy speech restrictions. I ultimately conclude that these consequences are sufficiently troubling that I must reluctantly oppose such information privacy rules. But I hope the article will also be useful to those who are committed to supporting information privacy speech restrictions, but would like to design their arguments in a way that will minimize the risks that I identify; and even to those who welcome the possibility that information privacy speech restrictions may become a precedent for other restrictions, because they believe the Court has generally gone too far in protecting, say, nonpolitical speech or speech that injures the dignity of others. Thinking ahead about the possible unintended implications of a proposal--even, and perhaps especially, if it seems viscerally appealing--is always worthwhile.

1. INFORMATION PRIVACY SPEECH RESTRICTIONS

   My analysis throughout this article will focus on the government acting as sovereign, restricting what information nongovernmental speakers may communicate about people. I thus exclude restrictions that the government imposes on its own agencies, such as Freedom of Information Act provisions that prevent government revelation of certain data,(13) or IRS or census rules that prohibit the communication of some tax or census data to other government agencies or to the public.(14) Government agencies do not have free speech rights against their own governments; for instance, federal agencies must comply with congressional mandates, and creatures of the state such as city or county governments cannot claim rights against the state legislature.(15) Whether speech by state agencies may be restrained by the federal government is a tougher question, but One that's beyond the scope of this article.(16) By focusing on communication by nongovernmental speakers--reporters, businesspeople, private detectives, neighbors--I limit the inquiry to people and organizations that indubitably have free speech rights.

   I also exclude restrictions that the government imposes as an employer (e.g., telling its employees that they may not reveal confidential information learned in the course of employment), or as a contractor putting conditions on the communication of information that it has no constitutional duty to reveal (e.g., telling people who want certain lists from the Federal Election Commission that they may only get them if they promise not to use those lists for certain purposes,(17) or telling litigants that they will get discovery materials only if they promise not to reveal them(18). The government has long been held to have much broader powers when it's acting as employer or contractor, imposing constraints on those who assume them in exchange for government benefits or for access to government records, than when it's acting as sovereign, controlling the speech of private citizens.(19) The unconstitutional conditions doctrine may impose some limits even on the government acting as employer or as contractor, but I will set these matters aside for purposes of this article.

   I also focus only on restrictions on communication. Other things that are

   often called privacy rules--the right to be free from unreasonable governmental searches and seizures, the right to make certain decisions about one's life without government interference, the right not to have people listen to you or watch you by going onto your property, the right not to have people electronically eavesdrop on your conversations, the requirement that credit bureaus notify consumers when credit reports about them are prepared, and the like--are outside the scope of my discussion.(20) Some of these laws, for instance restraints on government snooping or control, pose no First Amendment problems. For other laws, such as restrictions on nongovernmental gathering of information through nonspeech means, the First Amendment rules are unclear; but it is clear that the analysis of restrictions on information gathering is different from the analysis of restrictions on speech.(21) It is the latter doctrine that is most fully developed, and that provides the most protection against government restrictions.

   These three exclusions merely reflect the fact that the strongest protection of free speech has long been seen as...