an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The result in Snyder v. Phelps was not unexpected. But the Court's decision, written by Chief Justice Roberts, has important implications for informational privacy law that many people, focusing on the antics of the Westboro Baptist Church, may have missed. In his majority opinion, Roberts emphasizes the distinction between speech on matters of public concern and speech on matters of private concern. He adopts a broad definition of the former: speech is of public concern when it can "be fairly considered as relating to any matter of political, social, or other concern to the community," or when it "is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." The private lives of celebrities and politicians would seem to fall under that formula as much as would important issues of the day. Indeed, Roberts adds, "The arguably `inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.'"
Roberts distinguishes, by contrast, matters of private concern:
Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual’s credit report "concerns no public issue." 472 U. S., at 762. The content of the report,we explained, "was speech solely in the individual interest of the speaker and its specific business audience." Ibid. That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service,who were bound not to disseminate it further. Ibid. To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos "did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation."
Eugene Volokh has famously argued that many consumer privacy regulations are unconstitutional because they prohibit the distribution of true private facts about individuals by companies to other companies. It should not matter that the materials are collections of personal data and that they are sold from company to company. Privacy regulation, Eugene powerfully argues, involves "a Right to Stop Others from Speaking About You" and therefore is presumptively unconstitutional unless the company has contractually agreed with the subject not to use or distribute the information in particular ways. Since many companies carefully design their privacy policies so as to allow them to use information or exchange it with other companies for business purposes, the logic of this argument would seem to suggest that a wide variety of privacy regulations might violate the First Amendment.
Some courts have tried to argue that such data practices involve "commercial speech" and should be subject to much lower standards of scrutiny. That argument is likely to be unavailing for two reasons. First, it rests on a play on words: "commercial speech" is properly speech that proposes an economic transaction or otherwise engages in advertising; it does not refer to speech by commercial entities or speech used in business. Second, the Supreme Court has recently given commercial speech a much higher degree of protection, and this is especially so for commercial speech that is not false or misleading, which presumably digital dossiers of true personal information would not be.
Roberts' opinion in Snyder v. Phelps offers a potential way around these difficulties, which will please privacy advocates, but perhaps not strong free speech libertarians like Eugene. Collections of personal data about the vast majority of ordinary consumers, like the credit reports in Dun and Bradstreet, are matters of private concern, designed to be sold and transmitted from company to company. Therefore they are not part of public discourse and can be regulated under a much reduced standard of scrutiny. The appropriate test would probably not be mere rational basis, but it would probably be something more akin to intermediate scrutiny or balancing. That might be so even if the privacy regulation describes the material to be protected on the basis of its content or subject matter, as long as it is not on the basis of ideology or viewpoint.
A more difficult issue would arise if a newspaper obtained particular data in commercial databases that it believed was worthy of public comment and published it in a newspaper. Then cases like Bartnicki v. Vopper would suggest that if the extent that the newspaper's story is a matter of public concern, it would be protected as long as the newspaper did not itself obtain the material illegally but rather obtained it from another party who had violated consumer privacy laws.
I caution that this is only a possible theory of informational privacy protection; Snyder is easily distinguishable on any number of grounds. Nevertheless, Chief Justice Roberts has placed in the United States Reports an important enhancement of the distinction between matters of public and private concern that may lead to important new doctrinal developments in the area of personal privacy in the future. Posted
by JB [link]