Speech-Via-Algorithm Is Still Speech, And Censoring It Is Still Censorship
from the this-makes-no-sense dept
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.This is wrong. And dangerous.
Let's be clear here: what search engines do is present opinions. They are opinions based on data programmed by humans. There is nothing special in that it's a computer that cranks through the data to output the opinion. Taken to its logical conclusion, Wu's argument is that we should protect uninformed opinions not based on an algorithmic exploration of the data -- but the second you add in a computer to crunch the numbers, that opinion is no longer protected. Contrary to Wu's assertion that this "wanders" from the point of the First Amendment, I'd argue the exact opposite. The First Amendment should protect all kinds of speech, but we should be especially happy about that which is based on data.
Two responses to Wu's piece help highlight this point nicely. Julian Sanchez notes that Wu's argument seems to suggest that any computer generated content doesn't get First Amendment protections -- and that would include computer-generated video games and movies:
Consider an argument for denying First Amendment protection to movies and video games. Human beings, we all agree, have constitutional rights—but mere machines do not. When the computer in your game console or DVD player “decides” to display certain images on a screen, therefore, this is not protected speech, but merely the output of a mechanical process that legislatures may regulate without any special restrictions. All those court rulings that have found these media to be protected forms of expression, therefore, are confused efforts to imbue computers with constitutional rights—surely foreshadowing the ominous rise of Skynet.Similarly, Paul Levy takes Wu to task by comparing his argument to things like university rankings:
Probably nobody finds this argument very convincing, and it hardly takes a legal scholar to see what’s wrong with it: Computers don’t really autonomously “decide” anything: They execute algorithms that embody decisions made by their human programmers.
As the alumnus of a college that proudly rejects the proposition that the quality of educational institutions can be “measured by a series of data points,” I will take any opportunity to denigrate the Useless News and World Distort rankings of colleges, law schools and institutions of higher education. But it would never have occurred to me to offer a “speech by computer” theory as a basis for denying that the ranking is speech or that it is protected opinion. Maybe a stupid opinion, but that is not a basis for shutting the raters down, or enjoining them to change their rating criteria. Indeed, this theory seems to me absurd — it is not the computers that have free speech rights, any more than printing presses have free speech rights. It is the media companies that own the printing presses that have free speech rights, and by the same token it is the people and companies who program the computers and publish the results of their calculations that enjoy protection under the First Amendment.Pretending that Google is a computer that magically generates answers, absent humans regular and consistent input into its algorithm, is a strange position to take, and it really does suggest that we should only protect opinions that don't include a component that uses a computer to analyze the data. I can't see how that's smart policy or anything close to what was intended in the concept of free speech.