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Abstract

Studying the different ways in which intellectual property law addresses expressive concerns offers a variety of models for resolving the impending conflict between data privacy and the First Amendment. Yet intellectual property’s models for calibrating free-speech interests have been ignored by courts and rejected by privacy scholars. This Article remedies that failure. The Article begins in Part II by discussing the largely unexamined parallel between intellectual property law’s treatment of expression-based defenses and the similar accommodations that will need to be incorporated into data privacy law. Part II also addresses potential objections to modeling privacy law on intellectual property. Although there are some important conceptual differences between intellectual property and privacy protections, these differences are outweighed by their similarities, at least when it comes to the specific issue of how to harmonize such protections with expressive freedoms. Parts III through V delineate the doctrinal mechanisms judges have built into copyright, trademark, and publicity rights law for balancing the interests of intellectual property owners with free-speech concerns. Part III describes how intellectual property law deems particular categories of plaintiff communication to be worthy of protection and unworthy of First Amendment privileges for unauthorized users. Part IV notes how intellectual property law uses speaker intent as a proxy for First Amendment interests. Part V details specific doctrinal mechanisms used to evaluate the expressive importance of an intellectual property defendant’s speech contribution. Parts III through V also describe how courts could use these mechanisms to evaluate the constitutionality of new data privacy laws. By borrowing from intellectual property, courts can respond to the current public demand for restrictions on data use while still protecting the key expressive interests at the heart of the First Amendment.

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