Privacy laws rely on the unexamined assumption that the collection of data is not speech. That assumption is incorrect. Privacy scholars, recognizing an imminent clash between this long-held assumption and First Amendment protections of information, argue that data is different from the sort of speech the Constitution intended to protect. But they fail to articulate a meaningful distinction between data and other more traditional forms of expression. Meanwhile, First Amendment scholars have not paid sufficient attention to new technologies that automatically capture data. These technologies reopen challenging questions about what “speech” is.
This Article makes two overdue contributions to the First Amendment literature. First, it argues that when the scope of First Amendment coverage is ambiguous, courts should analyze the government’s motive for regulating. Second, it highlights and strengthens the strands of First Amendment theory that protect the right to create knowledge. Whenever the state regulates in order to interfere with the creation of knowledge, that regulation should draw First Amendment scrutiny.
In combination, these claims show clearly why data must receive First Amendment protection. When the collection or distribution of data troubles lawmakers, it does so because data has the potential to inform and to inspire new opinions. Data privacy laws regulate minds, not technology. Thus, for all practical purposes, and in every context relevant to privacy debates, data is speech.