[governance] Free Speech for Computers?

[Riaz K Tayob]

Op-Ed Contributor
Free Speech for Computers?
By TIM WU
Published: June 19, 2012



DO machines speak? If so, do they have a constitutional right to free 
speech?


For Op-Ed, follow @nytopinion and to hear from the editorial page 
editor, Andrew Rosenthal, follow @andyrNYT.

This may sound like a fanciful question, a matter of philosophy or 
science fiction. But it’s become a real issue with important consequences.

In today’s world, we have delegated many of our daily decisions to 
computers. On the drive to work, a GPS device suggests the best route; 
at your desk, Microsoft Word guesses at your misspellings, and Facebook 
recommends new friends. In the past few years, the suggestion has been 
made that when computers make such choices they are “speaking,” and 
enjoy the protections of the First Amendment.

This is a bad idea that threatens the government’s ability to oversee 
companies and protect consumers.

The argument that machines speak was first made in the context of 
Internet search. In 2003, in a civil suit brought by a firm dissatisfied 
with the ranking of Google’s search results, Google asserted that its 
search results were constitutionally protected speech. (In an 
unpublished opinion, the court ruled in Google’s favor.) And this year, 
facing increasing federal scrutiny, Google commissioned Eugene Volokh, a 
law professor at the University of California, Los Angeles, to draft a 
much broader and more elaborate version of the same argument. As 
Professor Volokh declares in his paper: “Google, Microsoft’s Bing, 
Yahoo! Search, and other search engines are speakers.”

To a non-lawyer the position may sound bizarre, but here is the logic. 
Take a newspaper advice columnist like Ann Landers: surely her answers 
to readers’ questions were a form of speech. Likewise, when you turn to 
Google with a question, the search engine must decide, at that moment, 
what “answers” to give, and in what order to put those answers. If such 
answers are speech, then any government efforts to regulate Google, like 
any efforts to bowdlerize Ann Landers, must be examined as censorship.

And that’s where theory hits reality. Consider that Google has attracted 
attention from both antitrust and consumer protection officials after 
accusations that it has used its dominance in search to hinder 
competitors and in some instances has not made clear the line between 
advertisement and results. Consider that the “decisions” made by 
Facebook’s computers may involve widely sharing your private 
information; or that the recommendations made by online markets like 
Amazon could one day serve as a means for disadvantaging competing 
publishers. Ordinarily, such practices could violate laws meant to 
protect consumers. But if we call computerized decisions “speech,” the 
judiciary must consider these laws as potential censorship, making the 
First Amendment, for these companies, a formidable anti-regulatory tool.

Is there a compelling argument that computerized decisions should be 
considered speech? As a matter of legal logic, there is some similarity 
among Google, Ann Landers, Socrates and other providers of answers. But 
if you look more closely, the comparison falters. Socrates was a man who 
died for his views; computer programs are utilitarian instruments meant 
to serve us. Protecting a computer’s “speech” is only indirectly related 
to the purposes of the First Amendment, which is intended to protect 
actual humans against the evil of state censorship. The First Amendment 
has wandered far from its purposes when it is recruited to protect 
commercial automatons from regulatory scrutiny.

It is true that the First Amendment has been stretched to protect 
commercial speech (like advertisements) as well as, more 
controversially, political expenditures made by corporations. But 
commercial speech has always been granted limited protection. And while 
the issue of corporate speech is debatable, campaign expenditures are at 
least a part of the political system, the core concern of the First 
Amendment.

The line can be easily drawn: as a general rule, nonhuman or automated 
choices should not be granted the full protection of the First 
Amendment, and often should not be considered “speech” at all. (Where a 
human does make a specific choice about specific content, the question 
is different.)

Defenders of Google’s position have argued that since humans programmed 
the computers that are “speaking,” the computers have speech rights as 
if by digital inheritance. But the fact that a programmer has the First 
Amendment right to program pretty much anything he likes doesn’t mean 
his creation is thereby endowed with his constitutional rights. Doctor 
Frankenstein’s monster could walk and talk, but that didn’t qualify him 
to vote in the doctor’s place.

Computers make trillions of invisible decisions each day; the 
possibility that each decision could be protected speech should give us 
pause. To Google’s credit, while it has claimed First Amendment rights 
for its search results, it has never formally asserted that it has the 
constitutional right to ignore privacy or antitrust laws. As a nation we 
must hesitate before allowing the higher principles of the Bill of 
Rights to become little more than lowly tools of commercial advantage. 
To give computers the rights intended for humans is to elevate our 
machines above ourselves.

Tim Wu, a law professor at Columbia, is the author of “The Master 
Switch: The Rise and Fall of Information Empires.”
https://www.nytimes.com/2012/06/20/opinion/free-speech-for-computers.html?_r=1&smid=fb-share


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