Privacy and the Right of Free Expression

Abstract

Nobody likes to be talked about but everybody likes to talk. Trying to stop the dissemination of private information is, however, an impingement on free expression and the freedom to observe. A freestanding "right of privacy" that violates these interests is constitutionally permissible only if it can be justified using one of the standard bases for allowing restrictions on First Amendment rights. The three most likely possibilities are that the law in question: (1) can pass strict scrutiny, (2) falls within a recognized "categorical" exception, or (3) has only an "incidental" burden on First Amendment interests. Of these three, only the last would seem to support a broad protection for privacy in the face of First Amendment challenge and, indeed, such protection has long been provided under the ordinary law of property. The exclusivity provided by ordinary property rights has long protected privacy in the places where most people spend most of their time, viz. privately owned spaces, and with respect to the objects that hold our personal information, including papers, digital equipment and other such privately-owned chattels. To the extent that privacy interests can be protected through ordinary property law (as most can), they should not encounter the serious constitutional objections that can be raised against laws that directly impinge on First Amendment interests. Any burdens on First Amendment interests imposed by property laws would qualify as merely "incidental” burdens, since the law of property (unlike many "privacy" laws) does not exist for the very purpose of limiting First Amendment interests such as the interest in free dissemination of truthful information. By contrast, rights of privacy that are divorced from property rights typically are meant to operate as direct impingements on the exercise of First Amendment rights and they are, therefore, of dubious constitutional validity.