from Part V - Constitutional Law, Human Rights, and Algorithms
Published online by Cambridge University Press: 19 October 2020
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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