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
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)
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,
U.S. West v. FCC, No. 98-9518 (10th Cir. 1999)
Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private
Sector by Solveig Singleton, Cato Institute Policy Analysis (January 22, 1998)
Collection as Free Speech by Solveig Singleton, CMC Magazine (September, 1997)