Could First Amendment cases regarding “buffer zones” have any implications for online advertising?

-- By HannahZale2 - 06 Mar 2015

Introduction

In this essay I consider whether First Amendment “buffer zone” cases could have any implications for individuals’ right to privacy in the context of online advertising, with particular consideration given to mobile data-enabled devices. While I think that employing the strategy of using a “buffer zone”-styled constitutional argument for placing limitations on freedom of speech (on behalf of advertisers) in regards to place, time, and manner of speech could have possibly been successful when smart phone technology was newer, I think it is now highly unlikely to be successful in practice. Recently, rulings on the constitutionality of enforcing speech “buffer zones” outside of abortion clinics further indicate the unlikelihood of successful application to the context of online advertising, since the trend appears to be towards allowing greater freedom of speech at the sacrifice of right to privacy (a mere observation, not making a statement that one can only be protected or maximized to the detriment of the other).

Section II - Application of “buffer zone” laws to right to privacy online and possible implications for the future of online advertising

Although federal law since 1994 has protected access to abortion clinics against threats of violent interference, a number of states decided to provide additional protections for individuals accessing abortion clinics (e.g. “buffer zones”). In the 2000 U.S. Supreme Court case Hill v. Colorado, the Court ruled on the constitutionality of a Colorado statute that makes it unlawful for any person within 100 feet of a health care facility’s entrance to knowingly approach within 8 feet of another person, without that person’s consent, in order to pass a pamphlet, display a sign, or engage in oral protest or counseling. The Court in Hill held, by a six-three vote, that the statute did not violate the First Amendment, affirming the lower Court’s decision that the statute imposed content-neutral time, place, and manner restrictions narrowly tailored to serve a significant government interest.

The types of time, place, and manner considerations discussed in Hill is potentially applicable to questions of freedom of speech online, and the right to privacy (i.e. to not be bothered or receive unwanted communication from others). Unlike the public places of First Amendment freedom of speech discussions past, including sidewalks, the public square, and highway billboards, personal computers and data-enabled mobile devices (e.g. smart phones and tablets) provide a forum for “speakers” to send targeted messages to reach a specific person at any time, while they are in any place. The content of these messages span all positions and objects and subject matters across categories of consumer and political advertising to public service announcements. Speakers now have highly efficient, targeted means of communicating their ad, position, or view to listeners, whether the messages are wanted are not. Why wait until someone is walking into an abortion clinic to take a stab at “counseling” them when you could transmit anti-abortion content advertising directly to anyone who searches Google for abortion clinic locations?

Section III - What could a “buffer zone” look like online?

An online “buffer zone” could take the form of a more explicit opt-in system for receiving messages or ads from third parties. Or perhaps it could include a filtering system that could enable each individual (potential message-recipient) to elect to receive ads or notices about certain subjects (or objects), or from particular types of groups or corporations, while muting messages from others. Obviously creating an online buffer zone is slightly less straight-forward than roping off a measured distance on a sidewalk, but it could be accomplished in any number of way.

Section IV - Conclusion - Possible implications for the future of online advertising

Could there be a buffer-zone based argument for the regulation of online advertising for the protection of message recipients? I am very interested in this question on a theoretical level, and I think there is a solid argument to be made for extending the Court’s reasoning by analogy. However, this is not something that I think has any likelihood of coming into fruition in reality. Even if the decision in Hill seemed to be on stronger footing, I do not think that there is a chance of the Court applying their reasoning in Hill to this realm.

However, it appears as though the trend on the Courts is heading towards ruling in favor of greater freedom of speech, even at the expense of other harms (e.g. Citizens United). In the 2014 case McCullen? v. Coakley, the United States Supreme Court struck down on First Amendment grounds a Massachusetts law which made it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility (abortion clinic). The Court in McCullen? ruled that the state’s interest in protecting individuals’ desire be left alone while accessing abortion clinics is outweighed by the state’s interest in protecting the freedom of speech for anti-abortion protestors who want to be in close proximity to women entering abortion clinics (to speak with the women entering, hand them anti-abortion literature, and to “counsel” them).

I think we will see smaller and fewer buffer zones in the future, unless there is a dramatic change to the cast on the Court.

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