This Note argues first, that the Commercial Speech Doctrine as currently conceived is an ill-fitting tool for resolving difficult free speech questions in the context of data, privacy, and the modern Internet Information Economy. The application of the Commercial Speech Doctrine to a particular economic interaction should not be a nigh-complete bar to the regulation of Internet platforms that profit from data collection and transmission. For this reason, qualified constitutional protection appropriately accounts for the speaker’s interests while not short-changing those of the listener/consumer. This Note proposes that regulators and reviewing tribunals consider the context surrounding the data collection and transmission process, including: method of collection, relationship between miner and mined party, and whether the user has consented to such collection in justifying the relative need for regulation. Second, in order to vindicate the Commercial Speech Doctrine’s initial purposes, more transparency of data collection procedures for use in targeted advertising is warranted and indeed possible as a regulatory hook to protect consumers, despite the Court’s move towards according more protection to commercial speakers.
In so doing, this Note builds upon Erin Bernstein and Theresa J. Lee’s Where the Consumer Is the Commodity: The Difficulty with the Current Definition of Commercial Speech, which proposes that the “rise of new non-linear commercial transactions” necessitates a shift in the definition of commercial speech to accommodate the seismic change in the modern online economy. The stakes are not inconsequential: failure to expand the scope of commercial speech would foreclose the use of many tools in a legislature’s arsenal to address current concerns related to consumer privacy and eliminating advertisements that seek to capitalize on discriminatory indicia, among other salient policy issues.
Part I details the Court’s jurisprudence regarding both personal solicitations and data practices and considers the shift away from a bifurcated speech paradigm that treats commercial speech as speech of “lesser value.” Part II illustrates the most common forms of data collection and transmission. Part III locates these methods of data collection and transmission within the current commercial speech framework to conclude that qualified constitutional protection is the coherent tier of scrutiny that should apply. Part IV proposes policy recommendations that fit within the Court’s current approach to commercial speech and alternatives that would require a departure from the present doctrine.