Abstract
The First Amendment is often considered to be in tension with privacy. This
Article is about the contexts in which it is not.
Although freedom of speech can pose challenges for privacy governance,
privacy is a core First Amendment value. Many important First Amendment decisions were motivated more by intuitions about privacy than any other interest. For each primary First Amendment liberty—the rights to speak, listen, associate, and practice religion—the Supreme Court has recognized not only a
substantive liberty but also the right to exercise it privately.
But although expressive privacy is an important First Amendment value, it
remains underrecognized, undertheorized, and underprotected. Privacy interests that are dispositive in some cases are rejected, with little explanation, in others. For example, in two decisions from the October 2024 Term—Free Speech Coalition v. Paxton and Mahmoud v. Taylor—the Court substantially revised the First Amendment privacy doctrine without even acknowledging the central role of privacy in its analysis. The result is a jurisprudence that is
inconsistent and that inadequately protects privacy and speech.
This Article argues three things: descriptively, that there is a First
Amendment right to privacy; normatively, that there should be a First Amendment right to privacy; and, prescriptively, that the First Amendment right to privacy should be expanded in the interest of doctrinal consistency and
greater fidelity to privacy’s role as a First Amendment value.
Repository Citation
Alex Chemerinsky,
The First Amendment Right to Privacy,
109 Marq. L. Rev. 1297
(2026).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss4/4