Reconciling Data Privacy and the First Amendment

This article challenges the First Amendment critique of data privacy regulation - the claim that data privacy rules restrict the dissemination of truthful information and thus violate the First Amendment. The critique, which is ascendant in privacy discourse, warps legislative and judicial processes by constitutionalizing information policy. Rejection of the First Amendment critique is justified on three grounds. First, the critique mistakenly equates privacy regulation with speech regulation. Building on scholarship examining the boundaries of First Amendment protection, this article suggests that speech restrictions in a wide variety of commercial contexts have never been thought to trigger heightened First Amendment scrutiny, refuting the claim that all information flow regulations fall within the First Amendment. Second, this article divides regulations of information flows into four analytic categories, and demonstrates how, in each category, ordinary doctrinal tools can be used to uphold the constitutionality of consumer privacy rules. Third, relying on recent intellectual histories of American constitutional law, this article argues that fundamental jurisprudential reasons counsel against acceptance of the First Amendment critique. From the perspective of privacy law, there are striking parallels between the critique's freedom of information and the discredited freedom of contract regime of Lochner. More importantly, from the perspective of First Amendment law, the critique threatens the obliteration of the distinction between economic and political rights at the core of post-New Deal constitutionalism. Rejection of the First Amendment critique thus has real advantages. At the level of policy, it preserves the ability of legislatures to develop information policy in a nuanced way. And at the level of theory, it preserves the basic dualism upon which the modern edifice of rights jurisprudence is built.