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Washington University Journal of Law and Policy

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privacy laws, free speech, First Amendment


First Amendment | Law | Privacy Law


A decade has passed since the U.S. Supreme Court held in Sorrell vs. IMS Health that a Vermont privacy law violated the First Amendment. Somewhat surprisingly, the debate about the intersection between privacy laws and free speech protections has not progressed much in the intervening years. If anything, the concerns that some privacy advocates had following Sorrell-that the First Amendment could be used as a tool to overturn privacy regulations-have extended to other areas of economic regulation. As a public interest attorney working on technology law and policy, I entered into practice not long after Sorrell was decided, when it seemed that privacy laws might not survive the Supreme Court's ever-expanding First Amendment jurisprudence. It has been dispiriting to see that, in the intervening years, not much has changed. Free speech advocates continue to claim that privacy laws raise significant, if not fatal, First Amendment issues. Privacy experts argue not only for the constitutionality of privacy laws, but also their increased necessity in a digital economy.

Amidst this backdrop, new First Amendment challenges to privacy proliferate even as the Supreme Court continues to expand the scope of First Amendment protections. Is privacy law under existential threat? And how can that be given the increased concerns and public attention to the lack of effective federal privacy regulation? This Essay seeks to contextualize the First Amendment challenges to privacy laws, arguing that the government's need to protect individual privacy is more persuasive than ever. It also sounds a note of caution, observing how the Supreme Court's recent hesitancy to go all-in on upending related doctrinal areas like commercial speech and standing demonstrates an understanding that putting privacy laws at risk might be a bridge too far.



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