Data Privacy and Dignitary Privacy: Google Spain, the Right To Be Forgotten, and the Construction of the Public Sphere

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming the “public opinion” that is essential for democratic self-governance. As the rise of American newspapers in the nineteenth and twentieth centuries demonstrates, the press underwrites the public sphere by creating a structure of communication both responsive to public curiosity and independent of the content of any particular news story. Google, even though it is not itself an author, sustains the contemporary virtual public sphere by creating an analogous structure of communication. With regard to privacy values, EU law, like the laws of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by the fair information practices contained in the Directive. These practices regulate the processing of personal information to ensure (among other things) that such information is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it seeks to endow persons with “control” over their personal data. Data subjects need not demonstrate harm in order to establish violations of data privacy. The second form of privacy recognized by EU law is dignitary privacy. Article 7 of the Charter of Fundamental Rights of the European Union protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate, or mortify them. Dignitary privacy follows a normative logic designed to prevent harm to personality caused by the violation of civility rules. There are the same privacy values as those safeguarded by the American tort of public disclosure of private facts. Throughout the world, courts protect dignitary privacy by balancing the harm that a communication may cause to personality against legitimate public interests in the communication. The instrumental logic of data privacy is inapplicable to public discourse, which is why the Directive contains derogations for journalistic activities. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. Because the Google search engine underwrites the public sphere in which public discourse takes place, Google Spain should not have applied fair information practices to Google searches. But the Google Spain opinion also invokes Article 7, and in the end the decision creates doctrinal rules that are roughly approximate to those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. It is impossible to ascertain whether the decision seeks to protect data privacy or dignitary privacy. Google Spain is ultimately pushed in the direction of dignitary privacy because data privacy is incompatible with public discourse, whereas dignitary privacy may be reconciled with the requirements of public discourse. Insofar as freedom of expression is valued because it fosters democratic self-government, public discourse cannot serve as an effective instrument of self-determination without a modicum of civility. Yet the Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. If it had more clearly focused on the requirements of dignitary privacy, Google Spain would not so sharply have distinguished Google links from the underlying websites to which they refer. Google Spain would not have blithely outsourced the enforcement of the right to be forgotten to a private corporation like Google

Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Insight of Paul Mishkin

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a public institution resides in the latter, the legal legitimacy of the law as a principled unfolding of professional reason inheres in the former. Mishkin came to believe that although the law required both forms of legitimacy, there was nevertheless serious tension between them, and he dedicated his scholarly career to attempting to theorize this persistent but necessary tension, which he conceived almost as a form of antinomy. In this article we pay tribute to Mishkin\u27s quest for understanding. We argue that the tension identified by Mishkin is significant and unavoidable, but that it is also exaggerated because it presupposes an unduly stringent separation between professional reason and popular values. In our view the law/politics distinction is both real and suffused throughout with ambiguity and uncertainty. The existence of the law/politics distinction creates the possibility of the rule of law, but the ragged and blurred boundaries of that distinction vivify the law by infusing it with the commitments and ideals of those whom the law purports to govern

Racist Speech, Democracy, and the First Amendment

The curse of racism continues to haunt the Nation. Everywhere we face its devastation, the bitter legacy of, in William Lloyd Garrison\u27s prophetic words, our covenant with death and ... agreement with Hell. This is the living consequence of the history that has produced us. We cannot overcome that history without changing ourselves and therefore also our legal order. Since Brown v. Board of Education vast stretches of our law have passed through the flame of this challenge. The question is always what to preserve, what to alter. Now it is the turn of the first amendment. Largely inspired by Richard Delgado\u27s article, Words That Wound, the past few years have witnessed an extraordinary spate of articles analyzing the constitutionality of restrictions on racist speech. This analysis is not merely academic. Motivated by an alarming increase in racist incidents, universities throughout the Nation have turned toward the task of restraining racist expression. The justification for these restraints, and their relationship to first amendment values, has become a matter of intense controversy

Lani Guinier, Joseph Biden, and the Vocation of Legal Scholarship.

It is in fact about our profession that I wish to meditate in this short essay, provoked by the painful and ill-fated nomination of Lani Guinier. I want to focus on a cavalier but wickedly penetrating remark of Senator Joseph Biden, the chair of the Senate Judiciary Committee that was to pass on Guinier\u27s candidacy. After reading Guinier\u27s scholarly articles, Biden said: If she can come up here and explain herself, convince people that what she wrote was just a lot of academic musing, who knows? ... I suppose it\u27s conceivable that she could be confirmed. If she comes up here and says she believes in the theories that she sets out in her articles and is going to pursue them, not a shot. Biden\u27s comment candidly questions the social significance of writing that is avowedly academic. It invites us to inquire into the nature of our vocation, to ask for whom and for what purpose we write. Biden uses the adjective academic dismissively, evoking the genial condescension with which mainstream culture regarded intellectual eggheads in the 1950\u27s: Academics are theoretical, out-of-touch, impractical. Lost in abstraction, they cannot be entrusted with real world tasks. But of course anyone with any knowledge of Lani Guinier would know that none of these characterizations could be applied to her. She was a tough, real-world, hard-driving litigator; she remains an articulate, hard-edged, smart, and persistent scholar. So Biden more probably meant his use of the word academic to apply not to Guinier personally, but to the genre in which her work appeared. He seems to have meant that law review articles as a form can be dismissed as merely academic. We can read Biden as establishing an opposition between the abstract and impractical work of law professors who write for law reviews, and the real and practical work of Washington officials who engage in the project of law creation and enforcement. The question I want to pursue is how we in the legal academy ought to regard this opposition

Justice William J. Brennan and the Warren Court.

Justice William J. Brennan\u27s eminent, if not pre-eminent, position in the annals of the Warren Court is now well established. The depth and clarity of his vision, the lucidity of its doctrinal expression, and his uncanny knack for creating crucial court majorities from the splinters of disparate perspectives have all been amply documented. In the words of one commentator, To the extent that the Court over which Warren presided has any intellectual legacy that is accessible to those trained in doctrine and not in ethics, it is Brennan who is responsible. In this essay I shall attempt to isolate and assess Brennan\u27s distinct contribution to that legacy. The immense influence of the Warren Court on American constitutional law can ultimately be traced to three discrete achievements: The reconstruction of constitutional law on individualist principles; the redesign of doctrine based upon a pragmatic conception of legal rules; and the vigorous articulation and revivification of egalitarian values. Although Justice William J. Brennan importantly participated in all three of these achievements, his work as a Justice was particularly decisive for the first two

Viewpoint Discrimination and Commercial Speech

Martin Redish\u27s argument, if I grasp it correctly, is that the failure to extend full First Amendment protection to commercial speech essentially amounts to a form of impermissible viewpoint discrimination undermining of the very core of what the First Amendment is all about. So far as Redish is concerned, viewpoint discrimination is rightly regarded as the most universally condemned threat to the foundations of free expression \u27 because the prohibition of viewpoint discrimination prevents the regulation of expression from degenerating into a struggle for political power. There can be no exceptions to the constitutional bar of viewpoint-based regulations, Redish writes, because to permit one exception is effectively to permit all viewpoint-based regulations. I must confess that despite my great admiration for Martin Redish I am in complete disagreement with this argument. There is much I could say about our differences, but in this brief comment I shall confine myself to two points: First, the concept of viewpoint discrimination is too confused and uncertain to carry the weight that Redish imposes on it. Second, even if an intelligible meaning could be given to the idea of viewpoint discrimination, there are good, nonviewpoint-based reasons for extending to commercial speech forms of protection that differ from those extended to political speech

Remarks for Robert Burt

The following remarks by Dean Post were delivered at Professor Burt\u27s funeral. The remaining Tributes are drawn from remarks delivered at a memorial service held at the Yale Law School on November 1, 2015. I am here today as Dean of the Yale Law School, where Bo has been an honored member of the faculty since 1976, having previously served on the faculties of the University of Michigan and the University of Chicago. I am here, that is to say, in something of a representative capacity. It is my privilege to offer on behalf of the entire Yale community our deepest condolences to Linda, to Anne and to Jessica, to Jeffrey, to Carolyn, to Tessa, Delayna, and Ella. Our broken hearts go out to you in support and love. As Dean, it is my particular privilege to express the affection and the esteem in which Bo was held by his peers and colleagues at the Law School. This is a subject about which I could say a great deal

Legitimacy and Hate Speech

Part of Symposium: Hate Speech and Political Legitimac

The Challenge of Globalization to American Public Law Scholarship

American public law scholarship views law as a purposive instrument for the achievement of democratic purposes. It has analyzed how this instrument can best be employed within the historical context of the legal institutions and traditions of particular nation-states. Emerging forms of international law, articulated by international tribunals, challenge these fundamental premises of American public law scholarship. Much international law does not reflect the will of an indentifiable demos, and it is articulated through innovative legal institutions that combine the procedures and organizational forms of many distinct states and legal cultures. Attempting to comprehend the sources and limitations of the legitimacy of this kind of international law will force American public law scholarship to re-examine deep and implicit presuppositions, inherited from legal realism, about the inherent normativity of the rule of law. The author speculates about possible effects of this re-examination on the substantive and methodological agenda ofAmerican public law scholarship