Privacy laws rely on the unexamined assumption that the collection of data is not speech. That assumption is incorrect. Privacy scholars, recognizing an imminent clash between this long-held assumption and First Amendment protections of information, argue that data is different from the sort of speech the Constitution intended to protect. But they fail to articulate a meaningful distinction between data and other, more traditional forms of expression. Meanwhile, First Amendment scholars have not paid sufficient attention to new technologies that automatically capture data. These technologies reopen challenging questions about what “speech” is.
This Article makes two bold and overdue contributions to the First Amendment literature. First, it argues that when the scope of First Amendment coverage is ambiguous, courts should analyze the government’s motive for regulating. Second, it highlights and strengthens the strands of First Amendment theory that protect the right to create knowledge. Whenever the state regulates in order to interfere with knowledge, that regulation should draw First Amendment scrutiny.
In combination, these theories show clearly why data must receive First Amendment protection. When the collection or distribution of data troubles lawmakers, it does so because data has the potential to inform, and to inspire new opinions. Data privacy laws regulate minds, not technology. Thus, for all practical purposes, and in every context relevant to the privacy debates, data is speech.Bambauer concludes -
When privacy scholars argue that data should be treated differently from traditional forms of communication (utterances, journals, movies and the like), they often do so for entirely rational and admirable reasons. If the First Amendment is too strong, and obstructs regulations that target lowvalue and negative-value speech, then the First Amendment will pose massive inefficiencies in our self-governance. Skepticism about the Supreme Court’s maximalist approach to First Amendment law is completely logical: the First Amendment is quite literally getting in the way of regulations that might improve social welfare.
The authors of the Bill of Rights could not have foreseen an avalanche of data when they drafted the First Amendment. But however they would have felt about Big Data, the restraints that they created were expected to frustrate the government, even when speech regulations are wellintentioned. The First Amendment is, in many ways, an experiment that hinders the government from deciding what speech, and what thoughts, are good, even if most level-headed people could agree on the matter. After all, a benevolent dictator is still a dictator.
But there is another, less pessimistic, explanation of the First Amendment’s restrictions. Our predictions about the negative effects of speech and information are frequently proven to be wildly off the mark. Every new innovation provokes a flurry of fear and draft legislation, leaving behind the remnants of technopanic. To take just one example, Caller ID, a service that is now taken for granted, was once the center of such heated privacy debate that the Federal Communications Commission requires telephone companies to block any phone number if the caller requests it. The regulation was promulgated over the vocal objections of the Electronic Privacy Information Center, which urged the FCC to set the default blocking the reporting of telephone numbers, and requiring callers to opt-in if they were willing to let their phone numbers be displayed.
This FCC rule looks much less critical in hindsight than it did in foresight. This is why the First Amendment should, and does, create a strong presumption in favor of access to information. Very often the most sensible-seeming restrictions on information turn out to be flawed by status quo bias and fear. These biases and fears are over-represented among public intellectuals today. Jeffrey Rosen has predicted that the Internet will be an existential threat to our identities and individuality, and Viktor Mayor-Schoenberger argues that increased information will decrease our ability to learn, and to forgive. These theories have so little support from history of the written word and the printing press, both information technological shocks of their times, that they are best forgiven and forgotten.
Oliver Wendell Holmes’ dissents, which over time have become seminal to modern First Amendment law, show a desire to craft speech rights that will not bend to accommodate a deceptively bad idea. According to David Rabban’s excellent historical account, Holmes may have been motivated to push for a robust speech rights because of his own, very personal realization that some of his strongly held beliefs were wrong.
In 1919, over the course of four opinions, Schenck, Sugarman, Frohwerk, and Debs, the Supreme Court upheld the convictions of socialists for antiwar speech under the Espionage Act. Ironically, Holmes and Brandeis were responsible for the majority opinions in all four of these cases, decisions that Holmes described as cruel, but correct. But after these prosecutions, as the dreary negotiations of the Treaty to Versailles were playing out, many Americans began to question whether World War I had achieved the goals that had justified American intervention in Europe. Holmes was among them. During this time of reflection, the justifications for quashing anti-war speech began to look hollow, and the government’s increased use of the Espionage Act to prosecute socialists looked equally wrong-headed.
Before the year 1919 came to a close, Holmes wrote the first of his many famous dissents, for the case Abrams v. U.S. The other justices continued to write opinions, as they had when Holmes was among them, that accused the anti-war radicals of manipulating, even abusing, the First Amendment by invoking it “to justify the activities of anarchy or of the enemies of the United States.” Holmes, on the other hand, used his dissent to walk back some of the exceptions to free speech that he had himself created. Though he never admitted to having a change of heart about his earlier opinions, the stance he took in Abrams shows unequivocally that he had.
Holmes may not have come to the defense of the persecuted Bolshevik pamphleteers if he had continued to believe that their message was wrong. That is, Holmes’ metamorphosis was not entirely driven by sympathy for political minorities. Equally important was the fact that his previously-held assumptions about the Great War conflicted with the raw evidence he came to perceive as the war wrapped up. So when Holmes wrote “Persecution for the expression of opinions seems to me perfectly logical,” he was not conceding that an expansive First Amendment is illogical. Rather, the persecution of disfavored expressions only seems logical. Time and the flushing out of conflicting evidence may wind up proving otherwise. Information about the war led Holmes to have a special, powerful experience: the changing of the mind. The sanctity of a freely made mind requires protection not only for speech, but also for the digestion of raw facts.