Scalia: Free Speech Trumps Privacy Online

• by Wendy Davis , Staff Writer @wendyndavis, May 1, 2009

Some lawmakers are talking about enacting new online privacy laws, but at least one U.S. Supreme Court Judge has indicated that such laws might not be constitutional.

Earlier this year, conservative judge Antonin Scalia said new privacy laws would conflict with the First Amendment. The remarks, made at an event held by the Institute of American and Talmudic Law, were in response to comments made by Jules Polonetsky, co-chair and director of the think tank Future of Privacy Forum.

Polonetsky outlined the various ways that data is collected across different Web platforms and proposed that people need some assurances that the information won't be used against them. Scalia responded that the First Amendment would prevent much of the privacy protection that Polonetsky seemed to favor.

In a follow-up question, Polonetsky asked Scalia what he thought about a federal law banning video rental stores from disclosing the names of movies customers borrow. That law has particular resonance for Supreme Court judges because it was passed after a newspaper obtained and printed video rental records of nominee Robert Bork. Scalia then softened his position somewhat, to concede that "sensitive" information might warrant privacy protection.

Fordham Law professor Joel Reidenberg apparently took Scalia's original statement as a challenge and assigned a class the task of compiling publicly available data about the judge. Students quickly put together a file that included Scalia's home address, phone number, wife's email and photos of his grandchildren, the blog Above The Law reported.

The stunt doesn't appear to have changed Scalia's mind. The judge told Above The Law that he stood by his earlier remark. "It is silly to think that every single datum about my life is private," he wrote. "It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time."

Scalia's thoughts on the matter are significant because he might end up ruling on the legality of any new online privacy laws. Rep. Rick Boucher (D-Va.) recently said he intends to draft privacy legislation this year. Additionally, Federal Trade Commission chair Jon Leibowitz said this week that Web companies are facing their last chance to prove they can protect people's privacy.

To a large extent, the judge's opinion reflects the tension that has long existed between free speech principles and privacy protections. Taking pictures of people, printing their names or addresses in the newspaper, or compiling information about them for a report, can all be seen as privacy violations, but those activities are usually protected by the Constitution.

That tension also exists in the context of online data collection for ad-serving purposes. There, it's marketers that are collecting the data, and they're using it behind-the-scenes rather than broadcasting it to the world. But some say that free speech principles still protect those actions.

The Newspaper Association of America, for one, argued against voluntary Federal Trade Commission guidelines about behavioral targeting on the theory newspapers have a First Amendment right to serve whatever truthful ads they wish. It looks like the newspaper group has at least one ally in high places.