The Knight Institute invites statements of interest for a workshop, “Free Speech and Consumer Protection in the Era of Commercial Surveillance,” to be held at the Institute on September 13, 2024. A more detailed discussion of the workshop topic, which is part of a larger project led by the Institute’s Senior Policy Research Fellow Olivier Sylvain, is below, followed by logistical information for those who wish to participate.


The decades-long legal settlement between consumer protection and free speech has come under intense stress recently. On the one hand, new technology has made commercial surveillance radically more efficient and intrusive than legislators and regulators could have expected just one or two decades ago. On the other hand, courts have been citing the First Amendment to invalidate new laws that aim to curb these contemporary commercial surveillance practices. This project will explore policy solutions that redefine the balance between consumer protection and free speech in ways that are suited to our time.

The Problem

Two phenomena are reshaping the political economy of information flows in the United States today. First, commercial surveillance has become the defining business model of the day. Companies collect troves of personal information in order to predict consumer desires, design attractive services, recommend content, and target advertisements at an unprecedented scale and speed. The biggest of these companies monetize this data in private arrangements with advertisers and data brokers. Most people do not completely understand the automated systems and transactions that power these practices, notwithstanding the ostensible consent that they give in order to access online services and content.

The second phenomenon is related. For over the past two or so decades, companies have been invoking the First Amendment to shield their commercial surveillance practices from public scrutiny. For example, they have challenged state laws that limit the ways in which online companies may collect personal information, design services, moderate user-generated content, and deliver content to consumers. They have also invoked the First Amendment to invalidate legal requirements that they disclose or explain their data practices. Some courts have been receptive to these arguments, effectively increasing the information asymmetry that already defines the relationship between companies and everyone else.

Balancing the Interests at Stake

The law today reflects a settlement between two important sets of interests that are often in tension. The first we associate generally with promoting the free flow of information. Under current First Amendment doctrine, for example, federal and state laws may require companies to disclose information about their commercial practices to prevent deception to consumers. Even so, the doctrine also forbids federal and state governments from restricting certain expressive acts, even if they are commercial in nature. After all, commercial speech sometimes fruitfully contributes to our general understanding of pressing public matters. These doctrinal rules together advance the democratic interests in public deliberation.

On the other side are the interests in consumer protection and privacy. Here, federal and state regulators have imposed a variety of restrictions on abuses or misuses of personal information. For example, companies generally may not market a consumer’s personal information to third parties without that consumer’s consent. Civil rights laws flatly forbid advertisements or solicitations that discriminate against people based on protected categories like race, gender, and religion in high-stakes sectors like housing, employment, and credit markets. The Children’s Online Privacy Protection Act (COPPA) imposes restrictions on the way in which online companies may direct content to children. And the Fair Credit Reporting Act (FCRA) allows consumers to contest the accuracy of personal information on which companies rely to evaluate creditworthiness. Together, these laws recognize that, sometimes, the interest in the free flow of information must be subordinated to consumer protection and privacy.

Potential Solutions and Their Limitations

Policymakers are considering a wide range of interventions—including the draft American Privacy Rights Act and updates to COPPA among other proposals—to redress the power asymmetries and risks of harm that today’s commercial surveillance practices pose. These include bans on specific commercial practices like algorithmic discrimination and the use of sensitive information like biometrics and precise location. Policymakers are also contemplating reforms that would curb companies’ use of personal data, mandate disclosures about commercial practices, promote researcher access to company data, narrow broad legal protections for online companies, and establish more robust antitrust protection.

Companies and their advocates have aggressively fought back against many of these potential reforms. They have expressed worry that government interventions like these will hamper innovation and free speech. They have urged courts, for example, to strike down restrictions on certain commercial surveillance practices because, they argue, those practices are sufficiently expressive to warrant the strongest constitutional protection. They have also challenged laws that require transparency and mandated disclosures about their data practices because, as they see it, those interventions restrict information-gathering or burden protected speech. Some of these claims are winning in court; judges have struck down laws that limit the ways in which companies may use, distribute, or target information, even when those laws aim to protect consumers (including children) from potential harm.

Knight Institute Convenings

The current legal settlement between consumer protection and free speech was never stable, inevitable, or obvious. It has always been contested. But something notable is happening in the courts today. At least, courts are graying the doctrinal line between laws that regulate commercial conduct and laws that intrude on protected speech. Consider, for example, Sorrell v. IMS Health, a 2011 case concerning a Vermont law that, among other things, imposed content- and speaker-based restrictions on pharmaceutical companies’ drug marketing techniques. There, the Court altogether elided the question of how searching courts’ scrutiny of regulation of commercial targeting techniques must be, choosing instead to hold that the law failed to survive both the commercial speech inquiry as well as the strict scrutiny reserved for noncommercial speech regulation.

This state of affairs invites a variety of descriptive, doctrinal, and normative questions for researchers, courts, and policymakers. To wit,

How different are commercial surveillance practices today from those of 40 or even 15 years ago?

Which commercial surveillance practices are more indispensable to the sustainability of companies than others? Which sustainable business models depend least on commercial surveillance practices?

What makes certain legal restrictions on commercial surveillance practices more/less burdensome than others? Which are most/least feasible?

Given the sophistication of commercial surveillance practices today, to what extent has the Court been the right authority to resolve cases in which consumer protection and free speech are in tension?

When, if at all, is commercial activity expressive in the contemporary market for personal information?

To what extent does the First Amendment allow governments to regulate automated commercial surveillance practices, including commercial applications of artificial intelligence and machine learning?

What purposes do consumer notice, transparency requirements, and mandated disclosures serve? How are the three different? How effective are they at protecting consumers?

Which purposes do redress or appeals rights in data protection and content moderation laws serve? Are they effective at protecting consumers given the nature of commercial surveillance practices today? Do they benefit the consumers who invoke them?

This project, a collaboration with the Institute’s Senior Policy Research Fellow Olivier Sylvain, will encompass at least two convenings of scholars, practitioners, regulators, industry representatives, and technologists to explore the ways in which legal reforms might find a balance between consumer protection and information distribution given today’s commercial surveillance practices. The first of these convenings will be a closed-door workshop on Friday, September 13, 2024, at the Knight Institute’s offices in New York City. This initial discussion will inform the structure and focus of a second public convening in Washington, D.C., in early 2025, with a new Congress in session. In collaboration with Hill-based partners, we will invite scholars, technologists, industry representatives, and policymakers to this event, designed to focus legislators’ attention on specific proposals for privacy protection.

Apply to Participate

Those interested in participating in the September 13, 2024, convening are invited to submit statements of interest to [email protected] by June 15, 2024. A statement of interest should be no more than a few paragraphs and should describe the applicant’s relevant background, what specific questions are of most interest to the applicant, what the applicant expects to be able to contribute to the discussion, and how the applicant hopes to use any insights gained from the convening. We anticipate inviting 10-15 people to participate. The Institute will cover participants’ reasonable travel costs.