Author(s): Paul M. Schwartz
Abstract: Free Speech versus Informational Privacy, 52 Stanford Law Review 1559 (2000), discusses and critiques Eugene Volokh’s recent article, Freedom of Speech and Information Privacy, 52 Stanford Law Review 1049 (2000). In his article, Volokh contends that the government’s safeguarding of information privacy endangers a wide range of speech unrelated to personal data. In response, I propose that a democratic society depends on realms of communication beyond that of public discourse. The difficulty is that the American law of freedom of expression is underdeveloped concerning checks on communication in the name of personal privacy. As a result, the challenge is to demonstrate that information privacy is an integral part of the mission of free speech and not its enemy. This comment argues that information privacy has an important role in protecting individual self-determination and democratic deliberation. Attention to these issues by the legal order is essential to the health of a democracy, which ultimately depends on individual communicative competence.
Keywords: free speech, informational privacy, personal data