In his new article, Information Fiduciaries, Jack Balkin argues that existing or prospective laws imposing confidentiality and other speech-related restrictions on Internet firms should be able to withstand First Amendment scrutiny (if they are designed well enough) because they protect consumers in fiduciary relationships. His article makes an important contribution to the growing literature on professional speech, and it offers privacy scholars a credible path through the constitutional landscape. The article also makes a less obvious contribution to debate on the boundaries of free speech. It argues that some regulations of speech — perhaps quite a lot of it, even — is best understood as the government management of relationships between the speakers and key interested parties. And, like other boundary zones of free speech, challenges to these types of regulations will require analysts and courts to take great care before concluding that they burden protected speech.
In this essay, I begin to roll out the implications of Balkin’s relational approach to free speech. Part I will show that the management of relationships can explain puzzles in free speech case law that go well beyond fiduciaries, and it may provide helpful guidance in future free speech controversies. Part II argues that even when the relationship approach to free speech is embraced, its implications are somewhat limited in the context of Internet services.
Bambauer, Jane R, The Relationships between Speech and Conduct (June 1, 2016). UC Davis Law Review, Vol 49, 2016; Arizona Legal Studies Discussion Paper No 16-16.