Prof. Stuart Benjamin on Algorithms and Speech

Our own Stuart Benjamin (Duke) has a very interesting new article out in the University of Pennsylvania Law Review, Algorithms and Speech. Here’s the Introduction:

More and more of our activity involves not merely the transmission of bits, but the transmission of bits according to algorithms and protocols created by humans and implemented by machines. Messages travel over the Internet because of transmission protocols, coding decisions determine the look and feel of websites, and algorithms determine which links, messages, or stories rise to the top of search engine results and web aggregators’ webpages. Most webpages have automated components, as do most online articles and all video games. Are these algorithm-based outputs “speech” for purposes of the First Amendment? That is, does the Free Speech Clause of the First Amendment apply to government regulation of these or other algorithmbased changes to bits?

In this Article I address that question. I conclude that if we accept Supreme Court jurisprudence, the First Amendment encompasses a great swath of algorithm-based decisions — specifically, algorithm-based outputs that entail a substantive communication. We could decide to reject Supreme Court jurisprudence, or read it narrowly in order to limit its application. But for the purposes of this Article, I will not apply that lens to the existing case law. Instead, I will look to broadly accepted sources and forms of legal reasoning — which in the First Amendment context means primarily Supreme Court jurisprudence — and consider whether those sources lead to the conclusion that algorithm-based outputs are speech for First Amendment purposes. I find that the answer is yes for most algorithm-based editing.

For some, this answer will be unwelcome. A wide range of commentators have expressed concerns about potentially expansive interpretations of the scope of the Free Speech Clause, such that much, if not most, government regulation is subject to heightened judicial scrutiny. Such a concern may motivate, at least in part, the contrasting answer that Tim Wu reaches in his piece. One possible response to these concerns is to articulate a theory of the Free Speech Clause that excludes algorithm-based decisions, or, perhaps more modestly, search engine results (which have been the focus of some commentators). Any such exclusion, however, will entail a radical revamping of our Free Speech Clause jurisprudence. And, as it turns out, there are interpretations that are consistent with existing jurisprudence (and, in my view, desirable on their own terms) that would limit the scope of the Free Speech Clause. Of course, one could find those interpretations insufficient, but I conclude that the inclusion of algorithm-based decisions in the First Amendment’s protections does not substantially advance the argument for a radical revamping.

In a previous article I asked how difficult it would be to find that mere transmission of bits constituted speech. One way of framing that question is to ask how hard it would be to expand the definition of speech to include something (mere transmission) that ordinarily would fall outside it. In this Article I address the converse question: How hard would it be to narrow the definition of speech to exclude something that Supreme Court jurisprudence would encompass? What would such an exclusion mean for First Amendment jurisprudence?

Much worth reading.