Former FTC Adviser: Free Speech for Computers is a "Bad Idea"

Yesterday, The New York Times posted an article by Columbia law professor and former FTC adviser Tim Wu titled “Free Speech for Computers?” that further explores whether constitutional protection of free speech applies to computers and machines.

Some argue that daily decisions made by computers (think suggestions from Facebook or a GPS) are technically speech that should be protected by the First Amendment. It’s a point that Eugene Volokh argued in his recent paper sponsored by Google. Wu explains the logic behind this theory as follows:

“Take a newspaper advice columnist like Ann Landers: surely her answers to readers’ questions were a form of speech. Likewise, when you turn to Google with a question, the search engine must decide, at that moment, what ‘answers’ to give, and in what order to put those answers. If such answers are speech, then any government efforts to regulate Google, like any efforts to bowdlerize Ann Landers, must be examined as censorship.”

Moving forward, Wu writes:

“Is there a compelling argument that computerized decisions should be considered speech? […] 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.”

Wu argues that Volokh’s Google-sponsored argument is dangerous territory that threatens the government’s ability to protect consumers and competition. He offers cautionary examples that the machines’ “decisions” could include sharing consumers’ private information or “deciding” to harm the competitive landscape that underlies the free market—business practices and impacts already well-documented at Google’s hands. Ordinarily, such behavior would be examined for violating laws and harming consumers. Wu believes that if these decisions are deemed “speech” then laws that protect competition and consumers would be considered censorship, neutering the laws designed to protect a competitive marketplace and consumer welfare and the agencies charged with enforcing them.

FairSearch has noted before that the First Amendment defense is merely a convenient theory to hide the fact that Google biases its display of search results to steer users to its own products and away from potential competitors for traffic to protect and extend its monopoly in search and search advertising. FTC Commissioner Jon Leibowitz also seems to see through this possible defense. After Google released Volokh’s paper, Leibowitz was quoted saying “if you engage in deceptive acts or practices, if you advertise deceptively, there is no First Amendment right to do that.”

Wu believes the line should be clear: “As a general rule, nonhuman or automated choices should not be granted the full protection of the First Amendment, and often should not be considered ‘speech’ at all.”

That’s a sentiment FairSearch could not agree with more.