63 pages

Abstract: Proposed ‘information privacy’ rules that give us the power to ‘control . . . information about ourselves’ and to mandate ‘fair information practices’ sound appealing. Why, after all, should a business be able to communicate information about its clients without the clients’ permission, and why should the media be able to publish unnewsworthy private information about us for the whole world to see?

The difficulty is that the right to information privacy—the right to control other people’s communication of personally identifiable information about you—is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of ‘fair information practices’) generally bars the government from ‘control[ling the communication] of information,’ either by direct regulation or through the authorization of private lawsuits.

This article makes two main points:

  1. While privacy protection secured by contract turns out to be constitutionally sound, broader information privacy rules are not easily defensible under existing free speech law.
  2. Creating new free speech exceptions to accommodate information privacy speech restrictions could give us much more than we bargained for: Most of the justifications given for information privacy speech restraints are directly applicable to other speech control proposals that have already been proposed, and accepting these justifications in the attractive case of information privacy speech restrictions would create a powerful precedent for those other restraints.

My chief goal is to consider, as concretely as possible, what these unintended consequences of various justifications for information privacy speech restrictions might be. I ultimately conclude that these consequences are troubling enough 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 order to 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.