Would a right to be forgotten survive First Amendment scrutiny? [discuss in the comments!]
I’ve had some interesting discussions with readers following my post on the EU right to be forgotten’s growing pains. Here’s a question that’s emerged:
would a right to be forgotten survive First Amendment scrutiny if it were passed under U.S. law?
To be sure, the current EU implementation of the right to be forgotten would almost certainly be vague and overbroad. But I’m curious whether readers think there is some formulation of a right to be forgotten that would survive First Amendment scrutiny and still be broad enough to achieve the basic purpose of the law, which is to give individuals license to force the removal of online content that’s deemed to be outdated or irrelevant.
There is at least one precedent for this kind of speech regulation in the States: California’s “eraser” law, which requires service providers to give minors the right to delete content they themselves posted. The right to delete your own content is a pretty narrow application of the right to be forgotten. Would even that narrow application fail First Amendment analysis? (Putting aside dormant commerce clause and other constitutional concerns).
I have some thoughts on all this myself, but since the readership and authorship of this blog includes distinguished First Amendment scholars, I’ll leave mine for the comments.