Informing and Reforming the Marketplace of Ideas: The Public-Private Partnership for Data Production and the First Amendment

Abstract:     
In 2011, the Supreme Court held that the First Amendment applied to the commercialization data in Sorrell v. IMS. While the case at issue dealt with state regulation of pharmacy data, the Court's holding extends to regulation of data in many contexts from government created databases to search engines and social media sites. This Article contains a critique of the decision, emphasizing that the majority and dissent take polar opposite positions without adequately addressing the normative foundations for data regulation and the institutional arrangements within which such regulation occurs. The critique provides a normative framework for the free flow of data and information that takes into consideration classic liberal principles, autonomy principles, and fairness. This normative framework is used to analyze the regulatory structures within data commercialization occurs, including intellectual property law, state law on open records, and information access initiatives. The Article offers three examples drawn from disputes involving tax assessment data, the data transparency projects of the Obama Administration, and protection of databases in Europe, to illustrate the issues raised by the Sorrell decision. The Article ends with a set of best practices for data commercialization that takes account of the normative framework and the First Amendment as applied to data.

Number of Pages in PDF File: 44

Keywords: First Amendment, Intellectual Property, Constitutional Law, Data Commercialization

JEL Classification: K2

Accepted Paper Series