by Randolph J. May
Legal Times, April 30, 2001

Earlier this month when President George W. Bush decided to implement the medical privacy regulations developed by the Clinton administration, The Wall Street Journal reported that the president “intends to back a wide range of privacy protections for consumers, even though his business allies sometimes object.” An unidentified administration official quoted the president as saying that he is “a privacy kind of a guy.”

The president’s action affirming the new restrictions on the dissemination of an individual’s medical records received applause not only from the general public but also from some self-styled leading civil-liberties advocates. Unfortunately, neither President Bush nor the civil liberties advocates who should know better appear to have considered the First Amendment implications of their push for new privacy protections.

Privacy concerns are not new, of course. The Bible tells us that Adam and Eve, discovering their nakedness, sewed fig leaves into loincloths and then tried to hide themselves, unsuccessfully, from the presence of the Lord. Today’s challenge confronting those seeking to protect their privacy in the age of the Web and other new digital technologies may not be as difficult as the omniscient one faced by Adam and Eve, but it is nevertheless real.

Not surprisingly, our digitally enhanced ability to collect, store, and disseminate data easily, including information that many of us may think of as sensitive or personal, has prompted cries for even more regulations to protect privacy. And, in a reflection of how much the digital revolution has shaken up the legal landscape, those cries have come from unlikely places.

For instance, the Privacy Coalition, an organization describing itself as an alliance of civil liberties, educational, library, consumer, and family-based groups, declared in a recent press release that “Privacy is the major social issue of the information society and the top technology issue of the 107th Congress.”

WHICH ESSENTIAL FREEDOM?

Invoking the Fourth Amendment right to be free from unreasonable searches and seizures, and calling privacy an “essential freedom” and one of America’s “most fundamental values,” the Privacy Coalition urges members of Congress to pledge to support the adoption of mandatory federal privacy safeguards. While the coalition itself has not taken a position on the medical privacy regulations, it asks that Congress adopt mandatory safeguards—including notice, consent, and limitations on the use of information—and redress when information is improperly used.

But for all the talk about “essential freedoms” and “fundamental values,” a pretty essential freedom and fundamental value is being ignored—freedom of speech. Although the American Civil Liberties Union, the American Library Association, and the Media Access Project are all members of the Privacy Coalition—and all self-proclaimed staunch free speech defenders—you would never know it from their privacy advocacy. They rarely acknowledge that their calls for privacy legislation implicate the First Amendment.

First Amendment, you say? In May 2000, Eugene Volokh, a noted First Amendment scholar and UCLA Law School professor (and adjunct fellow at the Progress & Freedom Foundation), published an article in the Stanford Law Review that deserves attention. His article, entitled “Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You,” explains:

[T]he right to information privacy—my right to control your communication of personally identifiable information about me—is a right to have the government stop you from speaking about me. We already have a code of “fair information practices,” and it is the First Amendment, which generally bars the government from controlling the communication of information (either by direct regulation or through the authorization of private lawsuits), whether the communication is
“fair” or not.

We all appreciate situations in which we wish to have the government’s assistance in stopping dissemination to others of even truthful information about ourselves. Much of the information that comes to mind in these instances we intuitively think of as being of private rather than public concern.

Assume that I am not the sort of public figure or otherwise newsworthy person to whom traditional First Amendment jurisprudence offers limited privacy protection. Assume further that I now have a highly contagious disease and that I was kicked out of college 10 years ago for an honor code violation. And assume on top of everything else that I have a terrible credit history.

I certainly might wish you would not reveal my medical condition to a prospective lover or insurer, or my honor code violation to a prospective employer. And I might even be tempted to agree with Consumers Union counsel Frank Torres’ statement, offered at an April 3 hearing before a House subcommittee, that there ought to be a law preventing “financial institutions from using data to choose between desirable borrowers and less profitable consumers the institutions may want to avoid.”

In other words, I might prefer in each of the above instances, and many others, that personally identifiable information about me not be disclosed. That is, I’d prefer that my privacy be protected.

But while reasonable people may differ, it is by no means clear that it is in society’s best interest for me to be able to prevent anyone from disseminating this type of personal information to others.

PRIVACY’S DAMAGE

More fundamentally, it is clear that our collective interest as a free society may be damaged if the government enacts new overbroad privacy regulations curtailing speech that I would rather have suppressed—and not just because the privacy laws in and of themselves are speech-suppressing. Professor Volokh worries that the same types of constitutional justifications will be offered in support of legislatively mandated privacy restrictions that have been offered, with varying degrees of success, in other contexts. It will be argued that the regulations restrain speech only on matters of private concern; restrain only commercial speech; are narrowly tailored to a compelling government interest in protecting people’s dignity, emotional tranquility, or safety; or pass muster under what some call “context-sensitive balancing.”

But, as Volokh states, “if these justifications are accepted in the attractive case of information privacy restrictions, such a decision will be a powerful precedent” for those who wish to argue for speech controls in other circumstances.

To be sure, protection of privacy is no trivial interest. It is of constitutional dimension, and deservedly so. Thus, it is not surprising that the preamble to the government’s new medical information rule waxes rhapsodic about privacy as one of “the rights of the individual at the forefront of our democracy”—without ever mentioning the First Amendment.

It is somewhat surprising, though, that organizations like the ACLU and the Media Access Project, which profess to put preservation of the right to free speech at the top of their agendas, seem to completely ignore the First Amendment implications of their push for new legislated information restrictions.

And what about the press itself, which depends on the free flow of information to carry out its function of disseminating information in a free society? Because the Supreme Court has made clear that the press generally is entitled to no greater First Amendment protection than non-press speakers, shouldn’t the press be concerned that new information privacy restrictions, as appealing as they may seem, may lead down a slippery slope of eroding First Amendment protection? As James Madison long ago warned, the power to erode constitutional constraints “strengthen[s] itself by exercise” and by “entangl[ing] the question in precedents.”

As for me, I would prefer that you not tell my wife if you see me leave a topless bar when she thinks I am working diligently at the office. It would be embarrassing, and it’s a matter of purely private concern. In this sense, like President Bush, I like to think of myself as “a privacy kind of guy.”

But, in another sense, I like to think I would resist the temptation to want the government to prohibit you from telling my wife. I fear the harm would be greater.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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