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Home > Privacy and Business > Privacy Law and Free Speech

Privacy Law and Free Speech

Information and speech go hand in hand. A clear example of this is the fact that candidates and political parties are increasingly using detailed personal information about constituents to tailor their arguments and campaign activities.

A common theme in many proposals for regulating private sector information practices is the idea that information causes harm. This naturally leads to proposals that edge right up against making use of information illegal, an absurd idea to be sure. The Founding Fathers wrote a presumption into our Constitution that collecting and transmitting information speech was legal. Government has to overcome a very high burden to make speech illegal. Most privacy regulations do not meet that burden. For example, the U.S. Court of Appeals has held unconstitutional Federal Communications Commission regulations requiring companies to get customers to "opt-in" before marketing to them.

The claim that there is a "right" to privacy is just as accurately a claim to have the government stop the sharing of true information about real people. Many proposals for government-mandated "fair information practices" are truly proposals for a very appealing kind of censorship. They are protected from being struck down on First Amendment grounds by a slender Supreme Court doctrine called the "commercial speech" doctrine. This doctrine puts certain kinds of free speech on a lower constitutional plane than other speech.

Many proposals to protect "privacy" are actually focused on other concerns. There are indeed many harmful uses of that can be made of information, but better laws and regulations would address these harms directly, rather than interfering with speech and information flows to get at harms indirectly.


Constitutional Issues in Information Privacy, by Fred Cate and Robert E. Litan, AEI-Brookings Joint Center for Regulatory Studies (September 2001)

Software Digs Deep Into Lives of Voters by John Mintz and Robert O'Harrow Jr., Washington Post (October 10, 2000)

Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking About You by Professor Eugene Volokh, Stanford Law Review (January, 2000)

U.S. West v. FCC, No. 98-9518 (10th Cir. 1999)

Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector by Solveig Singleton, Cato Institute Policy Analysis (January 22, 1998)

Data Collection as Free Speech by Solveig Singleton, CMC Magazine (September, 1997)

Comments? (Subject: FreeSpeech)

[updated 10/08/01]

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