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52 UCLA L. Rev. 1149 (2004-2005)
Reconciling Data Privacy and the First Amendment

handle is hein.journals/uclalr52 and id is 1163 raw text is: RECONCILING DATA PRIVACY AND THE FIRST AMENDMENT Neil M. Richards This Article challenges the First Amendment critique of data privacy regulaion- 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 and threatens the consti- tutionalization of information policy. The First Amendment critique should be rejected for three reasons. First, it 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 triggered heightened First Amendment scru- tiny, refuting the claim that all information flow regulations fall within the First Amendment. Second, the critique inaccurately describes current First Amendment doctrine. To demonstrate this point, 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, the critique is normatively unpersuasive. 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 advocacy of freedom of information and the discredited freedom of contract regime of Lochner. More importantly, from the perspective of First Amendment law, the critique threatens to obliterate the distinction between economic and political rights at the core of post-New Deal constitutionalism. Rejecting the First Amendment critique thus has real advantages. At the level of pol- icy, 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 modem edifice of rights jurisprudence is built. * Associate Professor of Law, Washington University. The author would like to thank the following people who helped immeasurably at the various stages of this project: Sam Bagenstos, Ken Bamberger, Kathie Barnes, Lillian BeVier, Chris Bowers, Trey Childress, John Harrison, Chris Hoofnagle, Peter Joy, Orin Kerr, Pauline Kim, Tom Nachbar, Troy Paredes, Wendy Niece Richards, Bo Rutledge, Joel Seligman, Daniel Solove, Peter Swire, and Eugene Volokh. This Article was also shaped significantly by the participants in law faculty workshops at the University of Virginia, Washington University, the College of William & Mary, the University of Illinois, Ohio State University, and the University of Alabama. Yvonne Ingram and Carol Wibbenmeyer provided invaluable secretarial help, and Sid Karamaju, Matt Kriegel, Megan Dredla, and Matt Bunda provided excellent research assistance. 1149

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