Two First Amendment Futures: Consumer Privacy Law and the Deregulatory First Amendment

After decades of calls for comprehensive consumer privacy laws in the United States, they are nearly here. The debates surrounding these laws, however, have paid scant attention to the inevitable First Amendment challenges. These challenges will occur in the context of the “deregulatory First Amendment,” the Supreme Court’s decades-long expansion of First Amendment limits on economic regulations. Scholars have compared this deregulatory agenda to the judicial excesses of the Lochner era. The First Amendment, however, has even greater deregulatory potential today because contemporary economic and social activity depend upon exchanges of information. Accordingly, First Amendment challenges to consumer privacy laws will bring us to a crossroads. One path forward would continue the Court’s deregulatory trajectory, drawing largely on the Court’s recent decisions in Sorrell v. IMS Health, Inc. and Reed v. Town of Gilbert. That path would further constrain the administrative state by treating all consumer data flows as “speech” for First Amendment purposes and using the Court’s recent approach to content discrimination to subject most consumer privacy laws to strict scrutiny, rather than the intermediate scrutiny that has applied to commercial speech for decades. An alternative path, however, would resolve challenges to consumer privacy laws under established First Amendment doctrine. That traditionalist path would treat consumer data as commodities rather than speech, analyze typical consumer privacy laws as imposing no more than incidental burdens on speech, and preserve the intermediate scrutiny standard for commercial speech regulations. The consequences of this choice will reach far beyond consumer privacy law and could jeopardize many of the regulatory tools on which the modern administrative state depends