Searching for Reputation: Reconciling Free Speech and the "Right to be Forgotten"

December 20, 2015

This article offers a comprehensive assessment of the tension between First Amendment law and the European Court of Justice’s decision in 2014 granting individuals the right to have search engines “forget” certain personal information about them. While the ECJ decision is vague on the boundaries of a “right to forget,” it correctly locates a problem of “too much speech” for speech’s own good as well as for the goods of privacy and reputation. Three developments combine to create the problem of too much speech. The first is the over-extension of commercial speech doctrine far beyond its modest beginnings. The Roberts Court has suggested that inherited distinctions between the importance of political and commercial speech are in jeopardy, as is the entire notion that the First Amendment distinguishes between the importance of speech on public and private matters. The second is the sweeping characterization of data as if it were already speech, no matter how raw and inarticulate the data. The third is the judicial treatment of search engine speech as if rankings are mere expressions of opinion entitled to heightened First Amendment protection against allegation of bias. I conclude by offering modest prescriptions for containing what counts as commercial speech and for setting expiration dates on how long personal information remains online as a way to introduce some amount of “forgetting” into the Internet while not going as far as the ECJ did.