Seeks Proper Balance Between First Amendment Rights & Privacy
WASHINGTON, D.C. - Citing a need to strike the proper balance between First Amendment rights and privacy regulation, Progress & Freedom Foundation Senior Fellow Randolph J. May has filed an amicus brief with the U.S. Supreme Court urging its review of a lower court’s decision in Trans Union LLC v. Federal Trade Commission.
In his brief, May writes that the D.C. Circuit Court’s affirmation of a Federal Trade Commission speech ban on Trans Union “unwarrantedly inflicts too much damage on traditional First Amendment jurisprudence in the name of protecting privacy.” He maintains the lower court mistakenly concluded that the contested speech, in the words of the lower court, “relates to no matter of public concern” and, thus, warrants reduced constitutional protection. Further, May argues that the court “gave short shrift” to consideration of less severe means of protecting privacy interests.
“The Court should grant the Trans Union petition to ensure that First Amendment interests receive proper protection in this era in which courts increasingly will confront cases involving speech regulation in the name of privacy,” May writes. “To be sure, it will be necessary in these cases to balance the speaker’s First Amendment rights in disseminating information against the government’s interest in protecting privacy. By deciding this case, the Court can affirm the vitality of certain fundamental First Amendment principles in the face of what are likely to be more frequent attempts to regulate information dissemination under the privacy rubric.”
Citing a recently published book by PFF fellows Paul Rubin and Thomas Lenard, Privacy and the Commercial use of Personal Information, as well as previous court opinions, May maintains that targeted advertising provides consumers with “valuable information.” The D.C. Circuit “misunderstands the role such speech plays in furthering the larger public interest in an efficiently functioning free marketplace,” he writes. Further, he faults the lower court for dismissing a less restrictive alternative to the FTC’s ban – the ‘opt-out’ provision.
May has published numerous articles and essays on a wide variety of topics ranging from communications and administrative law to constitutional theory. He writes a regular column on legal and regulatory issues for Legal Times.
The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.