A New Theory of Commercial Speech

-- By JackFurness - 12 Mar 2021

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” Commercial speech is a form of speech falling within the scope of the First Amendment that protects commercial transfers, including transfers of information, from government regulation absent a compelling interest. The test used by courts for balancing the justification offered by the State against the extent to which the regulation limits speech comes from Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980) and requires the application of intermediate scrutiny. Thus, the State must advance a substantial interest to be achieved by the regulations used to restrict commercial speech, and the limitation must be carefully tailored to achieve the State’s purported goal.

In Sorrell v. IMS Health (2011), the Supreme Court held that a Vermont state that restricted the sale, disclosure, and use of records revealing the prescribing practices of doctors was an impermissible violation of commercial speech under the Central Hudson test. This case has been read to mean that harvesting and selling users’ data is a protected form of commercial speech, and therefore, any regulation that limits such speech must survive intermediate scrutiny.

I will argue that such a regulation could and should pass muster under current First Amendment jurisprudence for two reasons. First, the importance of the government interest asserted is high because most online users have a reasonable expectation of privacy from passive collection of their data while online. Second, most internet users have no knowledge of or ability to opt-out of passive data collection, which is in turn an infringement on their own right to collect and sell their personal data, or at least elect not to have it taken from them without just compensation. This paper will explore both of these arguments under the umbrella of current First Amendment jurisprudence and argue that, against the backdrop of the explosive growth of the market for user data and they inapposite countervailing interests expressed in prior commercial speech cases, an act of Congress that restricts internet service providers from passively collecting and selling users’ data without express consent could pass muster under the present constitutional framework.

Jack, you really need to complete this first draft so that we can move on to a second.

Section I [Background / Overview of the Issue]

Subsection A [Commercial Speech / Central Hudson Valley]

Subsub 1

Subsection B [Sorrell]

Subsub 1

Subsub 2

Section II [Solutions]

Subsection A [Expectation of Privacy]

Subsection B [Right to Opt-Out]

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