Free Speech and the Marketplace of Identities

The serious dangers data mining presents to our freedoms and privacy are well documented. In many ways it threatens our very way of life, beginning with the notion -- long thought to be fundamental and unalterable -- that our identities belong to us and us alone. As we discussed in class, our government does little to prevent such substantial intrusions into our lives; indeed, it facilitates data mining, both through legislation and through its own use of the technique. Rather than protecting our interests, our supposed guardians fuel their addiction to data by feeding on our identities. And instead of reeling in the spooks, the Supreme Court has led the charge. In perhaps one of the most counterintuitive decisions in recent memory, the Court held in 2011 that, not only does the Constitution offer no protection against the schemes of data miners -- it protects their machinations from most government regulation.

In Sorrell v. IMS Health, 131 S. Ct. 2653 (2011), the Court struck down a Vermont statute that prohibited pharmaceutical manufacturers from using data mined information about doctors’ prescribing behavior to market drugs to them. The state legislature had made substantial findings regarding such marketing, concluding that it tended to inflate prices for brand name drugs (due to asymmetrical information) and curb the sale of cheaper generic drugs. Id. at 2661. Yet, rather than viewing the statute as a state’s attempt to correct a dysfunctional market, the Court instead painted the law as “enact[ing] content- and speaker-based restrictions” in violation of the First Amendment. Id. at 2663. In an opinion that reads like a clarion call for the freedom of individual expression, the Court invoked the likes of Brandenburg for the proposition that “the fear that speech might persuade provides no lawful basis for quieting it.” Id. at 2670. As for treating impersonal, computer-produced data as deserving the same protection as core political speech, the Sorrell majority said simply, “While the burdened speech results from an economic motive, so too does a great deal of vital expression.” Id. at 2665.

Lochner through the Back Entrance

Never mind that, as a matter of First Amendment doctrine, the opinion represents a drastic departure from modern commercial speech precedents; as Justice Breyer points out in dissent, the Court had never before applied heightened scrutiny where the speech-related effects of a statute were “indirect, incidental, and entirely commercial.” Id. at 2685. More troubling is the opinion’s implication that, now armed with a novel constitutional footing, the conservative majority of the Supreme Court can finally perfect its vision of good government, first enunciated in Lochner. Indeed, Justice Kennedy’s opinion for the Court was almost glib about this fact, noting “[t]he Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics.’ It does enact the First Amendment.” Id. at 2665 (quoting Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting)).

While the Roberts majority may herald Sorrell as a victory from a government power perspective, the result is deeply troubling if we think about the implications for private citizens. Because all human conduct on the net creates data and records of the type that were held to be speech in Sorrell, the opinion takes a giant leap towards turning all “conduct” -- generally regulable, except where due process or equal protection is implicated -- into “speech,” the regulation of which is presumptively invalid under the First Amendment. In effect, Sorrell turns the marketplace of ideas into the marketplace of identities.

The Marketplace of Identities

I see two basic problems with this equivalence. First, setting aside the serious dignitary interests at stake whenever human beings are commoditized, it is simply bad economics to think of identities as fungible goods. As inapt as it is to conceive of ideas as just like bushels of wheat, we at least have a legal framework for thinking of them as property; intellectual property law, regardless of its wisdom, makes ideas (or at least their expression) alienable and excludable, and therefore the market metaphor has some purchase. By contrast, conceptualizing a data miner as “owning” my personal information, particularly in a legal regime that protects (or at least purports to protect) my privacy and autonomy, is counterintuitive to the point of being incoherent.

Second, another premise underlying the marketplace of ideas is that it is open to any and all participants; thus an idea’s success in the market will tend to correlate with that idea’s merits for the public at large. By contrast, only a privileged few can buy and sell in the marketplace of identities, and their interests are at least widely divergent from -- if not diametrically opposed to -- the public’s. Just like the polluter whose profit motive would lead to disaster if left unchecked, so too do traders in personal data need to be monitored and regulated. To erect a First Amendment barrier to government intervention in this market not only misunderstands the nature of the “speech” at issue but also grossly underestimates the damage such an unregulated market is likely to wreak on society. Thus, insofar as the result in Sorrell was by no means required by the text of the Constitution, the Court should have thought through the implications of its laissez-faire directive.

In an age where the net can turn every idea or expression into a good that can be bought and sold, we must be especially vigilant against the personal intrusions of massive data mining. While today’s government has shown an unwillingness to act in our interest on this front, broadened awareness and reform-minded political movements may be able to reverse this trend. But insofar as the Roberts Court is constitutionalizing its vision of “freedom,” it is taking that option off the table. While paeans to individual liberty and free trade in ideas like those in Sorrell have intuitive and rhetorical appeal, reflexive reliance on such maxims is effectively ceding control of our destinies to those who seek to control them.

This is one way to look at the situation. The other, which I presented to you at some length, is that what the Court says in Sorell is a basic First Amendment proposition that cannot be denied if you want to keep the thing at all: the provision guarantees our right to learn about people, think about what we know about them, and communicate with them directly to the extent they are willing, without being told by the State what we may or may not say. No one is purporting to control false advertising, fraud, or other crime, which is incontestably part of the State's police powers. The essence of the legislature's case is that the advertising is effective, which is hardly a compelling reason to prohibit it.

We have had for a generation parity for commercial speech under the First Amendment, which—in a very capitalist, consumerist society also dedicated to the freedom of speech—is the only sensible outcome. I don't see how one is to disagree with Justice Kennedy: "incorporation" invests the due process clause with substance, and over state legislation that trenches upon the particular freedoms incorporated in the due process clause from the bill of rights, we have substantive constitutional review by the judges. That's Lochnerism if Mapp v. Ohio or _Virginia State Pharmacy Board v. VCCC_are. But it seems to me that reduces an idea to an epithet.

In any event, it seems to me fine that we disagree, but I wish the draft didn't simply take for granted that there is no other side worth answering. Much of your argument would be addressed to a legislature that could do what you suggest only if not constitutionally prohibited, but the constitutionality of your policy is unestablished. Might I at least have the benefit of some reasons why my objections are immaterial?