Honk for Free Speech

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By Tim Wu, a Columbia Law School professor, from the May 2013 issue of the University of Pennsylvania Law Review.


The question of “rights for robots,” if once limited to science fiction, has now entered the public debate. In recent years, firms like Verizon and Google have relied on First Amendment defenses against common-law and regulatory claims by arguing that some aspect of an automated process is speech protected by the Constitution. These questions will only grow in importance as computers become involved in more areas of human decision making.

A simple approach, favored by some commentators, says that the First Amendment presumptively covers algorithmic output so long as the program seeks to communicate some message or opinion to its audience. But while simplicity is attractive, so is being right. In practice, the approach yields results both absurd and disruptive; the example of the car alarm shows why. The modern car alarm is a sophisticated computer program that uses an algorithm to decide when to communicate its opinions, and when it does it seeks to send a particularized message well understood by its audience. It meets all the qualifications stated: yet clearly something is wrong with a standard that grants Constitutional protection to an electronic annoyance device. Something is missing.

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