Book contents
- The Cambridge Handbook of the Law of Algorithms
- The Cambridge Handbook of the Law of Algorithms
- Copyright page
- Contents
- Figures
- Tables
- Notes on Contributors
- Foreword
- Preface
- Acknowledgements
- Abbreviations
- Part I Introduction and Setting the Stage for a Law of Algorithms
- Part II Business, Regulations, and Decision-Making with Algorithms
- Part III Intellectual Property and Algorithms
- Part IV Criminal Law, Tort Issues, and Algorithms
- Part V Constitutional Law, Human Rights, and Algorithms
- 24 Human Rights-Based Approach to AI and Algorithms
- 25 Four Modes of Speech Protection for Algorithms
- 26 Algorithms and Freedom of Expression
- 27 Artificial Minds in First Amendment Borderlands
- 28 The First Amendment and Algorithms
- 29 Algorithmic Analysis of Social Behavior for Profiling, Ranking, and Assessment
- 30 Algorithmic Stages in Privacy of Data Analytics
- Part VI Applications and Future Directions of Law and Algorithms
- Index
28 - The First Amendment and Algorithms
from Part V - Constitutional Law, Human Rights, and Algorithms
Published online by Cambridge University Press: 19 October 2020
- The Cambridge Handbook of the Law of Algorithms
- The Cambridge Handbook of the Law of Algorithms
- Copyright page
- Contents
- Figures
- Tables
- Notes on Contributors
- Foreword
- Preface
- Acknowledgements
- Abbreviations
- Part I Introduction and Setting the Stage for a Law of Algorithms
- Part II Business, Regulations, and Decision-Making with Algorithms
- Part III Intellectual Property and Algorithms
- Part IV Criminal Law, Tort Issues, and Algorithms
- Part V Constitutional Law, Human Rights, and Algorithms
- 24 Human Rights-Based Approach to AI and Algorithms
- 25 Four Modes of Speech Protection for Algorithms
- 26 Algorithms and Freedom of Expression
- 27 Artificial Minds in First Amendment Borderlands
- 28 The First Amendment and Algorithms
- 29 Algorithmic Analysis of Social Behavior for Profiling, Ranking, and Assessment
- 30 Algorithmic Stages in Privacy of Data Analytics
- Part VI Applications and Future Directions of Law and Algorithms
- Index
Summary
If someone relies on algorithms1 to communicate to others, does that reliance change anything for First Amendment purposes?2 In this chapter I argue that, under the Supreme Court’s prevailing jurisprudence, the answer is no. Any words or pictures that would be speech under the First Amendment if produced entirely by a human are equally speech if produced via human-created algorithm. So long as humans are making the decisions that underlie the outputs, a human is sending whatever message is sent. Treatment as speech requires substantive editing by a human being, whether the speech is produced via algorithm or not. If such substantive editing exists, the resulting communication is speech under the current jurisprudence. Simply stated, 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.
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- The Cambridge Handbook of the Law of Algorithms , pp. 606 - 631Publisher: Cambridge University PressPrint publication year: 2020