New Frameworks Not Required to Address the Constitutional Boundaries of Privacy Statutes

The commercial use and exploitation of personal data continues to bump up against data privacy laws, which have proliferated. Regulations protecting the personal information of government officials have become particularly important. While the need for new laws stems from contemporary issues and modern social interactions, the legal framework for construing and applying those laws has a decidedly historical context. 

Under a test laid out in Star Florida Star v. B.J.F., 491 U.S. 524 (1989) and Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), a First Amendment challenge to a state privacy tort can succeed only if the speaker disclosed lawfully obtained, truthful information about a matter of public significance, and if imposing liability would further a state interest of the highest order.

Taken in the context of today's privacy laws, consider recent arguments by data brokers in Atlas Data Privacy Corp. v. We Inform LLC et al., claiming that statutory obligations to remove certain public officials’ addresses and phone numbers violate their First Amendment rights.

In response, the attorneys general of 41 states and the District of Columbia recently filed an amicus brief urging the U.S. Court of Appeals for the Third Circuit to uphold a New Jersey statute limiting disclosure of addresses and phone numbers of judges, prosecutors, and other law enforcement officials and their families. They argue that the “Daily Mail test” is the appropriate measure, and that states have a sovereign interest to protect their officials, which does not run afoul of the First Amendment, particularly where the information is not of public concern and the law does not seek to drive ideas from the marketplace.

There is no need to invent a new legal model for dealing with those issues as courts have long been tasked with resolving the boundaries between privacy rights and First Amendment protections. The U.S. Supreme Court has drawn those lines, and its decisions can readily be applied to the privacy statutes of today.