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About the lecture
One reason that the internet has proved such a troubling site for regulation is because its social practices, which tend to stabilize and guide legal interventions, are in a constant state of flux. Conceptual mistakes are therefore easy to make. Such mistakes are evident in the seminal European case of Google Spain SL v. Agencia Española de Protección de Datos, which created the “Right to Be Forgotten” (“RTBF”). As explained in Google Spain, the RTBF protects data privacy, which in Europe is a fundamental right that has most recently been enshrined in the General Data Protection Regulation (“GDPR”). Google Spain contains two fundamental errors about the nature of communication over the internet. First, it fails to understand the role that search engines like Google play in sustaining the virtual public sphere. Second, it fails to understand the incompatibility between data privacy, as set forth in the GDPR and established in the RTBF, and the virtual public sphere. It would have been easy enough for the Court of Justice of European Union (“CJEU”) instead to have conceptualized the Right to Be Forgotten as an action designed to protect dignitary privacy, which for many years has been used by most states in the world to regulate public discourse. Dignity privacy may be in tension with public discourse, but, unlike data privacy, it is not fundamentally incompatible with that discourse. The failure of the CJEU to understand the preconditions for the virtual public sphere and to recognize the incompatibility between data privacy and public discourse suggests how difficult it is for the legal imagination to grasp the evolving implications of cyberspace.
Robert Post is Sterling Professor of Law at Yale Law School. He served as the school's 16th dean from 2009 until 2017. Before coming to Yale, he taught at the University of California at Berkeley School of Law.
Post specializes in constitutional law, with a particular emphasis on the First Amendment. He is also a legal historian who is currently writing Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, which will cover the period 1921–30 when William Howard Taft was Chief Justice. Post has written and edited numerous books, including "Citizens Divided: A Constitutional Theory of Campaign Finance Reform" (2014), which was originally delivered as the Tanner Lectures at Harvard in 2013; "Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State" (2012), which was originally delivered as the Rosenthal Lectures at Northwestern University; "For the Common Good: Principles of American Academic Freedom" (with Matthew M. Finkin, 2009), which has become the standard reference for the meaning of academic freedom in the United States; and "Prejudicial Appearances: The Logic of American Antidiscrimination Law" (2001), which was originally delivered as the Brennan Lectures at Berkeley.
Post publishes regularly in legal journals and other publications; exemplary articles and chapters include “Data Privacy and Dignitary Privacy: Google Spain, The Right to be Forgotten, and the Construction of the Public Sphere” (Duke Law Journal, 2018); “The Politics of Religion: Democracy and the Conscience Wars,” in "The Conscience Wars: Rethinking the Balance Between Religion, Identity, and Equality" (Susanna Mancini and Michel Rosenfeld, eds., Cambridge University Press 2018); “Theorizing Disagreement: Reconceiving the Relationship Between Law and Politics” (California Law Review, 2010); “Roe Rage: Democratic Constitutionalism and Backlash” (with Reva Siegel, Harvard Civil-Rights Civil-Liberties Law Review, 2007); “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era” (William & Mary Law Review, 2006); “Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law” (Harvard Law Review, 2003); and “Subsidized Speech” (Yale Law Journal, 1996).
Post is a member of the American Law Institute and a fellow of both the American Philosophical Society and the American Academy of Arts and Sciences.