Algorithms and speech

University of Pennsylvania Law Review

Volumn 161, Issue 6, 2013, Pages 1445-1494

  Benjamin, Stuart Minor ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 84878855157     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Article

References (151)

1. The list goes on and on. See, e.g., CHRISTOPHER STEINER, AUTOMATE THIS: HOW ALGORITHMS CAME TO RULE OUR WORLD 7 (2012) ("Algorithms have already written symphonies as moving as those composed by Beethoven, picked through legalese with the deftness of a senior law partner, diagnosed patients with more accuracy than a doctor, written new articles with the smooth hand of a seasoned reporter, and driven vehicles on urban highways with far better control than a human.").
2. There is no single accepted definition of "algorithm." See Algorithm Characterization, WIKIPEDIA, http://en.wikipedia.org/wiki/Algorithm- characterizations (last updated Feb. 11, 2013) (stating that an "[a]lgorithm does not have a generally accepted formal definition" and discussing more than twenty different prominent characterizations). Broadly speaking, an algorithm is a set of instructions designed to produce an output. My use of the term in this Article focuses on its most common usage - as instructions or rules implemented by a computer. That is, I want to focus on nonhuman processes, and I use the term "algorithm" to refer to them. For ease, I will refer to decisions made by protocols, algorithms, and other computations as algorithm-based decisions. I could call them "code-based processes" or some other less-familiar and more ungainly term, but I choose "algorithm" simply because it has become more familiar shorthand.
3. See generally Vincent Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV. 449, 449-66 (1985);
4. Thomas H. Jackson & John Calvin Jeffiries, Jr., Commercial Speech: Economic Due Process and the First Amendment, 65 VA. L. REV. 1, 14-25 (1979);
5. Jedediah Purdy, The Roberts Court v. America, DEMOCRACY, Winter 2012, at 46, 49-53.
6. The work of Frederick Schauer has been especially important in this regard. See generally Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1794-95 (2004) [hereinafter Schauer, Boundaries];
7. Frederick Schauer, Codifying the First Amendment: New York v. Ferber, 1982 SUP. CT. REV. 285;
8. Frederick Schauer, Commercial Speech and the Architecture of the First Amendment, 56 U. CIN. L. REV. 1181 (1988);
9. Frederick Schauer, First Amendment Opportunism, in ETERNALLY VIGILANT 174 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002).
10. See Tim Wu, Machine Speech, 161 U. PA. L. REV. 1498 (2013) ("Too much protection would threaten to constitutionalize many areas of commerce and private concern without promoting the values of the First Amendment.").
11. See, e.g., Oren Bracha & Frank Pasquale, Federal Search Commission? Access, Fairness, and Accountability in the Law of Search, 93 CORNELL L. REV. 1149, 1193-1201 & n.239 (2008) (contending that the First Amendment, properly understood, does not cover search engine rankings).
12. Stuart Minor Benjamin, Transmitting, Editing, and Communicating: Determining What "The Freedom of Speech" Encompasses, 60 DUKE L.J. 1673, 1695 (2011) (concluding that "argument that transmission qua transmission triggers the First Amendment is ⋯ weak").
13. See generally Algorithm, WIKIPEDIA, http://en.wikipedia.org/wiki/ Algorithm (last updated Mar. 29, 2013);
14. What Is a Computer Algorithm?, HOWSTUFFWORKS, http://computer. howstuffworks.com/question717.htm (last visited Apr. 10, 2013).
15. See, e.g., Steven E. Halpern, Harmonizing the Convergence of Medium, Expression, and Functionality: A Study of the Speech Interest in Computer Software, 14 HARV. J.L. & TECH. 139, 181 (2000) (discussing the application of the First Amendment to computer software);
16. Robert Post, Encryption Source Code and the First Amendment, 15 BERKELEY TECH. L.J. 713, 716 (2000) (discussing whether encryption source code is covered by the First Amendment);
17. Schauer, Boundaries, supra note 5, at 1794 ("The anti-Microsoft and anti-Hollywood claims of the open-source movement focus on the way in which computer source codes can be conceived of as a language and therefore as speech ⋯.");
18. Katherine A. Moerke, Note, Free Speech to a Machine? Encryption Software Source Code Is Not Constitutionally Protected "Speech" Under the First Amendment, 84 MINN. L. REV. 1007, 1027 (2000) ("[B]ecause source code is the implementation of an idea, not the expression of it, it is not entitled to First Amendment protection as a type of speech.").
19. The government has acted on these concerns on a number of occasions by restricting the distribution or export of computer software that it viewed as dangerous on a number of occasions, producing several lawsuits. See, e.g., Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) (export of excryption software programs);
20. Bernstein v. Dep't of Justice, 176 F.3d 1132 (9th Cir. 1999) (distribution of encryption software pursuant to the International Traffic in Arms Regulations);
21. Karn v. Dep't of State, 925 F. Supp. 1 (D.D.C. 1996) (designation of a computer diskette as a "defense article" pursuant to the Arms Export Control Act and the International Traffic in Arms Regulations).
22. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 447 (2d Cir. 2001) (holding that the First Amendment covers computer programs, and stating that "[a] recipe is no less 'speech' because it calls for the use of an oven, and a musical score is no less 'speech' because it specifies performance on an electric guitar");
23. Bernstein, 176 F.3d at 1141 (concluding that "encryption software, in its source code form and as employed by those in the field of cryptography, must be viewed as expressive for First Amendment purposes"), reh'g en banc granted and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999).
24. *3-4 (W.D. Okla. May 27, 2003) (order granting Google's motion to dismiss). "PageRank" is an algorithm that "measure[s] ⋯ the quantity and quality of links from one website to another." Victor T. Nilsson, Note, You're Not from Around Here, Are You? Fighting Deceptive Marketing in the Twenty-First Century, 54 ARIZ. L. REV. 801,807 (2012);
25. see also PageRank, WIKIPEDIA, http://en.wikipedia.org/wiki/PageRank (last updated Apr. 6, 2013).
26. Frank Pasquale, Dominant Search Engines: An Essential Cultural & Political Facility, in THE NEXT DIGITAL DECADE 401, 402 (Berin Szoka & Adam Marcus eds., 2010), available at http://nextdigitaldecade.com/ndd-book.pdf.
27. See Bracha & Pasquale, supra note 7; see also Jennifer A. Chandler, A Right to Reach an Audience: An Approach to Intermediary Bias on the Internet, 35 HOFSTRA L. REV. 1095, 1117 (2007) (stating that in light of websites' free speech "right to reach an audience, and the listener's right to choose among speakers according to the listener's own criteria, free of extraneous discriminatory influences[,] ⋯ search engines should not manipulate individual search results except to address instances of suspected abuse of the system").
28. SeeEUGENE VOLOKH & DONALD M. FALK, FIRST AMENDMENT PROTECTION FOR SEARCH ENGINE SEARCH RESULTS (2012), available at http://www.volokh.com/wp- content/uploads/2012/05/SearchEngineFirstAmendment.pdf.
29. Volokh and Falk state that Google, Microsoft's Bing, Yahoo! Search, and other search engines are speakers. First, they sometimes convey information that the search engine company has itself prepared or compiled (such as information about places appearing in Google Places). Second, they direct users to material created by others, by referencing the titles of Web pages that the search engines judge to be most responsive to the query, coupled with short excerpts from each page⋯. Third, and most valuably, search engines select and sort the results in a way that is aimed at giving users what the search engine companies see as the most helpful and useful information. Id. at 3. James Grimmelmann has taken a more nuanced position, focusing on search engines as advisors to their users. See James Grimmelmann, Search Engines as Advisors (2013) (unpublished manuscript) (on file with author).
30. Tim Wu, Free Speech for Computers?, N.Y. TIMES, June 20, 2012, at A29 ("[A]s 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."). I understand Wu to be making a different argument in his contribution to this Symposium, and I discuss it briefly in note 84, infra.
31. See, e.g., Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) ("The Government may ⋯ regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest."). Only one speech regulation has survived strict scrutiny in the Supreme Court. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2712 (2010) (upholding a federal statute making it a crime to "knowingly provid[e] material support or resources to a foreign terrorist organization" in light of the particular deference due to the Executive regarding the combating of terrorism (quoting 18 U.S.C. § 2339B(a)(1) (2006))).
32. Akhil Amar has argued that intratextualism - identifying terms appearing in different parts of the Constitution and interpreting them to have similar meanings - illuminates the meaning of "speech" under the Free Speech Clause. Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999). In particular, he contends that the term "speech" in the Speech or Debate Clause, which provides that Senators and Representatives "shall not be questioned in any other Place" for "any Speech or Debate in either House," U.S. CONST. art. I, § 6, cl. 1, applies only to political speech, and therefore that we should interpret the Free Speech Clause to cover only, or at least primarily, political speech. Amar, supra, at 815. This line of argumentation has not been met with widespread agreement, however, and for purposes of this section I am addressing only broadly accepted interpretations.
33. See generally Adrian Vermeule & Ernest A. Young, Commentary, Hercules, Herbert, and Amar: The Trouble with Intratextualism, 113 HARV. L. REV. 730 (2000) (criticizing Amar's theory of intratextualism).
34. LEONARD W. LEVY, FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY: LEGACY OF SUPPRESSION 4 (1960) [hereinafter LEVY, LEGACY];
35. see also Stanley C. Brubaker, Original Intent and Freedom of Speech and Press ("The debates in Congress concerning the speech and press clauses shed scant light on the question of meaning⋯. Nor do we find enlightening comments in the state legislatures that considered the amendments or the local newspapers or pamphlets of the time."), in THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING 82, 85 (Eugene W. Hickok, Jr. ed., 1991). That said, Framing-era materials suggest that the Framing generation held a narrower conception of the freedom of speech than do modern courts, and many in the Framing generation adhered to Blackstone's position that the freedom of speech was best understood as a freedom from prior restraints.
36. See, e.g., LEONARD W. LEVY, JEFFERSON AND CIVIL LIBERTIES: THE DARKER SIDE 46 (1963) ("Jefferson ⋯ never protested against the substantive law of seditious libel ⋯. He accepted without question the dominant view of his generation that government could be criminally assaulted merely by the expression of critical opinions that allegedly tended to subvert it by lowering it in the public's esteem."); LEVY, LEGACY, supra, at xxi ("The evidence drawn particularly from the period 1776 to 1791 indicates that the generation that framed ⋯ the First Amendment was hardly as libertarian as we have traditionally assumed.");
37. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 22 (1971) ("In colonial times and during and after the Revolution [early political leaders] displayed a determination to punish speech thought dangerous to government, much of it expression that we would think harmless and well within the bounds of legitimate discourse.");
38. G. Edward White, Historicizing Judicial Scrutiny, 57 S.C. L. REV. 1, 60 (2005) ("Since the First Amendment only applied against Congress, this approach assumed that the federal government could punish seditious, libelous, blasphemous, obscene, or indecent speech with impunity so long as it did not censor the speech in advance.");
39. On the marketplace of ideas, see infra notes 30-32 and accompanying text. On the search for truth, see generally William P. Marshall, In Defense of the Search for Truth as a First Amendment Justification, 30 GA. L. REV. 1 (1995).
40. On self-government and democratic deliberation, see generally ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948);
41. ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 119-78 (1995);
42. CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1995);
43. and Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191.
44. On autonomy, see generally C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 194-224 (1989);
45. Richard H. Fallon, Jr., Two Senses of Autonomy, 46 STAN. L. REV. 875 (1994);
46. and Harry H. Wellington, On Freedom of Expression, 88 YALE L.J. 1105 (1979).
47. On the checking function, see generally Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521.
48. On self-expression, see generally MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS (1984);
49. and David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45 (1974).
50. See, e.g., THOMAS I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT at vii (1966) ("Despite the mounting number of decisions and an even greater volume of comment, no really adequate or comprehensive theory of the First Amendment has been enunciated, much less agreed upon.");
51. DANIEL A. FARBER, THE FIRST AMENDMENT 6 (2d ed. 2003) ("For a while there was a trend toward single-value theories of First Amendment law, in which a scholar would posit a single underlying constitutional value and then attempt to deduce all First Amendment doctrine from that value. Such efforts, whatever their merits, never seemed to persuade many other scholars and were almost entirely ignored by the courts.");
52. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 CALIF. L. REV. 2353, 2372 (2000) (noting that the Supreme Court has not consistently followed any one theory of the First Amendment). The absence of a consensus in support of a particular theory of the First Amendment is not surprising: each possible conception of the First Amendment can be subjected to legitimate criticism, and reaching agreement at that level of specificity is difficult for any group, Justices or otherwise. The Supreme Court's First Amendment jurisprudence is thus one of the many areas characterized by incompletely theorized agreements. Cass Sunstein characterizes this phenomenon as follows: Many judges are minimalists; they want to say and do no more than necessary to resolve cases⋯. [Minimalists] attempt to reach incompletely theorized agreements, in which the most fundamental questions are left undecided. They prefer outcomes and opinions that can attract support from people with a wide range of theoretical positions, or with uncertainty about which theoretical positions are best. In these ways, minimalist judges avoid the largest questions about the meaning of the free speech guarantee, or the extent of the Constitution's protection of "liberty," or the precise scope of the President's authority as Commander in Chief of the Armed Forces.
53. Cass R. Sunstein, Minimalism at War, 2004 SUP. CT. REV. 47, 48 (footnote omitted).
54. Justice Holmes's dissent in Abrams v. United States, 250 U.S. 616 (1919), contains the first, and probably the most famous, articulation of the marketplace metaphor, one that "revolutionized not just First Amendment doctrine, but popular and academic understandings of free speech."
55. Joseph Blocher, Institutions in the Marketplace of Ideas, 57 DUKE L.J. 821, 823-24 (2008). Holmes wrote, [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. Abrams, 250 U.S. at 630 (Holmes, J., dissenting). See also Blocher, supra, at 824-25 ("Never before or since has a Justice conceived a metaphor that has done so much to change the way that courts, lawyers, and the public understand an entire area of constitutional law. Its influence has been both descriptive and normative, dominating the explanation of and the justification for free speech in the United States.").
56. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
57. See, e.g., Post, supra note 10, at 716 ("Lee Tien is fundamentally misguided to believe that he can explain First Amendment coverage 'without appealing to a grand theoretical framework of First Amendment values.' If First Amendment coverage does not extend to all speech acts, then such a framework is at a minimum necessary in order to provide the criteria by which to select the subset of speech acts that merit constitutional attention." (quoting Lee Tien, Publishing Software as a Speech Act, 15 BERKELEY TECH. L.J. 629, 636 (2000))).
58. Brown, 131 S. Ct. at 2733. The entirety of the Court's discussion is as follows: California correctly acknowledges that video games qualify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. "Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine." Winters v. New York, 333 U.S. 507, 510 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas - and even social messages - through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection. Id.
59. Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1460 (codified as amended in scattered sections of 47 U.S.C.).
60. See, e.g., Roth v. United States, 354 U.S. 476, 484 (1957) (stating that the First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people"); FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 94 (1982) ("Communication dominates all the arguments that would with any plausibility generate a Free Speech Principle.");
61. Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 IOWA L. REV. 1259, 1274 (2010) ("The Supreme Court has been very clear about the First Amendment requirement that speakers must engage in definitive communication before receiving constitutional protection for speech.");
62. Frederick Schauer, Speech and "Speech" - Obscenity and "Obscenity": An Exercise in the Interpretation of Constitutional Language, 67 GEO. L.J. 899, 920-21 (1979) ("The Court is saying that the communication of ideas is at once the essential first amendment purpose and the essential first amendment property. Without this purpose or property, activity is not protected by the first amendment."). One might reasonably ask what work "self-expression" is doing in the formulation in the text, on the assumption that self-expression is a substantive communication. Adding "self-expression" clarifies the inclusion of forms of expression that have been recognized as implicating the freedom of speech even though they arguably do not entail a clear substantive communication - in particular, recognized forms of art and symbolism. As the Supreme Court stated in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc.: The protected expression that inheres in a parade is not limited to its banners and songs ⋯ for the Constitution looks beyond written or spoken words as mediums of expression. Noting that "[s]ymbolism is a primitive but effective way of communicating ideas," our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even "[m]arching, walking or parading" in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll. 515 U.S. 557, 569 (1995) (citations omitted) (quoting, respectively, W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943); Nat'l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 43 (1977) (per curiam); Spence v. Washington, 418 U.S. 405, 411 (1974) (per curiam).
63. See, e.g., Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (noting that the Supreme Court has "extended First Amendment protection only to conduct that is inherently expressive"); Spence, 418 U.S. at 409-10 (finding that the display of an American flag with peace symbols was an activity "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments").
64. See, e.g., KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 54 (1989) ("When the message is an aspect of what the actor is trying to do and is understood by the audience as such, we can say comfortably that the act communicates the message and that the free speech principle is relevant.");
65. Melville B. Nimmer, The Meaning of Symbolic Speech Under the First Amendment, 21 UCLA L. REV. 29, 36 (1973) ("Whatever else may or may not be true of speech, as an irreducible minimum it must constitute a communication. That, in turn, implies both a communicator and a communicatee - a speaker and an audience.");
66. Thomas Scanlon, A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF. 204, 206 (1972) ("[By] 'acts of expression' ⋯ I mean to include any act that is intended by its agent to communicate to one or more persons some proposition or attitude.").
67. See, e.g., Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-85 (1992) (discussing the public forum doctrine).
68. The same may not be true with respect to lower courts' jurisprudence. Most notably, lower courts have found that encyclopedias, how-to books, etc. are covered by the First Amendment, but have upheld liability for defective aeronautical charts without suggesting that such liability raised any First Amendment issues. See, e.g., Aetna Cas. & Sur. Co. v. Jeppesen & Co., 642 F.2d 339, 341-44 (9th Cir. 1981) (addressing liability for a defective aeronoautical chart without discussing the First Amendment);
69. cf. Brocklesby v. United States, 767 F.2d 1288, 1295 n.9 (9th Cir. 1985) (not reaching the First Amendment issue in a case involving an aeronautical chart because it was raised for the first time on appeal). It may be that aeronautical charts are best understood as falling into an exception that the Supreme Court has articulated. But it may well be that the Court's jurisprudence would treat these charts as speech for First Amendment purposes.
70. This is not a product of my imagination, of course. There is a well-known, billboard-sized "National Debt Clock" in Manhattan. Its central features are tallies of the national debt and the debt per American family. (The only text reads "Our National Debt," "Your Family Share," and "The National Debt Clock.") The clock simply follows an algorithm to calculate the national debt and then displays the result. There are also websites that perform similar functions. See, e.g., US DEBT CLOCK, http://www.usdebtclock.org (providing continuously updated information on the national debt and related numbers - gross domestic product, credit card debt, etc.).
71. Note that the fact that the person or entity claiming to be engaged in speech does not create the underlying content is irrelevant for purposes of First Amendment coverage. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 570 (1995) ("First Amendment protection [does not] require a speaker to generate, as an original matter, each item featured in the communication⋯. [T]he presentation of an edited compilation of speech generated by other persons is a staple of most newspapers' opinion pages, which, of course, fall squarely within the core of First Amendment security, as does even the simple selection of a paid noncommercial advertisement for inclusion in a daily paper." (citations omitted)); Turner I, 512 U.S. 622, 636 (1994) (finding that cable operators "engage in and transmit speech" by choosing channels to air);
72. see also Danny Sullivan, The New York Times Algorithm & Why It Needs Government Regulation, SEARCH ENGINE LAND (July 15, 2010) http:// searchengineland.com/regulating-the-new-york-times-46521 (analogizing Google to a newspaper).
73. See Morse v. Frederick, 551 U.S. 393, 397 (2007). The Court treated the banner as speech under the First Amendment even though "the message on Frederick's banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all." Id. at 401.
74. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos. v. City of Boston, 636 N.E.2d 1293, 1299 (Mass. 1994) (internal quotation marks omitted), rev'd sub. nom Hurley, 515 U.S. 557 (1995).
75. See The State of the News Media 2013: Annual Report on American Journalism, PEW RES. CTR.'S PROJECT FOR EXCELLENCE JOURNALISM, available at http://stateofthemedia.org/2013/overview-5 (last visited Apr. 10, 2013);
76. see also NARRATIVE SCIENCE, http://narrativescience.com (last visited Apr. 10, 2013) ("Using complex Artificial Intelligence algorithms, [our program] extracts and organizes key facts and insights and transforms them into stories, at scale."). In fact, the baseball example comes from an article quoting the following from a Narrative Science article: Friona fell 10-8 to Boys Ranch in five innings on Monday at Friona despite racking up seven hits and eight runs. Friona was led by a flawless day at the dish by Hunter Sundre, who went 2-2 against Boys Ranch pitching. Sundre singled in the third inning and tripled in the fourth inning ⋯ Friona piled up the steals, swiping eight bags in all.
77. Steven Levy, Can an Algorithm Write a Better News Story than a Human Reporter?, WIRED (April 24, 2012), http://www.wired.com/gadgetlab/2012/04/can- an-algorithm-write-a-better-news-story-than-a-human-reporter/all (quoting a Narrative Science article). Not bad for a computer, eh?
78. See Amy Hadfield, Narrative Science, Newsblaster Show that Algorithm-Writing Articles Have a Key Role to Play in Journalism's Future, EDITORS WEBLOG (Aug. 8, 2012), http://www.editorsweblog.org/2012/08/22/ narrative-science-newsblaster-show-that-algorithm-writing-articleshave-a-key- role-to-pla (noting that Narrative Science "employs a team of 'meta-writers' - journalists who work alongside the company's engineers to produce a set of templates that give the story its 'angle,' the most interesting element of the event it is writing up. To construct sentences, the algorithms draw on topic-specific lists of vocabulary provided by the meta-writers, and then place these sentences within pre-set article frameworks"). This is not unique to articles, nor is it that new. In 2008 a Russian publishing company programmed software to create a novel that was a variation on Leo Tolstoy's Anna Karenina written in the style of Haruki Murakami (whose books were uploaded into the program).
79. See Irina Titova, Book Written by Computer Hits Shelves, ST. PETERSBURG TIMES (Russ.) (Jan. 22, 2008), available at http://www.sptimes.ru/story/24786. The publisher's chief editor explained, "Today publishing houses use different methods of the fastest possible book creation in this or that style meant for this or that readers' audience. Our program can help with that work." Id. He added, "However, the program can never become an author, like PhotoShop can never be Raphael." Id.
80. See BLEKKO, http://blekko.com (last visited Apr. 10, 2013).
81. About, BLEKKO, http://blekko.com/about (last visited Apr. 10, 2013).
82. A search engine called DuckDuckGo adopts a strategy that is in some ways between blekko and Google, in that it focuses on blocking spam as a proxy for relevance. See DUCKDUCKGO, https://duckduckgo.com (last visited Apr. 10, 2013).
83. DuckDuckGo's founder Gabriel Weinberg explained in an interview that "[t]he main benefit you see right away is we try to get way better instant answers⋯. We're also way more aggressive with spam." Jose Vilches, Interview with DuckDuckGo Founder Gabriel Weinberg, TECHSPOT (Aug. 21, 2012), http://www.techspot.com/article/559-gabriel-weinberg-interview/page2.html. Weinberg added, There's been a lot of the data that shows that initially when people click on content farm results, they actually like them because they often match their query exactly. But we believe that in the long run you won't like them, because they're often low quality content. So, that's a hard problem for search engines because a lot of the metrics they use for relevance show those results are very relevant, even though I think that they're not. Id.
84. See Matt Cutts, Another Step to Reward High-Quality Sites, GOOGLE WEBMASTER CENTRAL BLOG (Apr. 24, 2012, 2:45 PM), http://googlewebmastercentral. blogspot.com/2012/04/anotherstep-to-reward-high-quality.html ("The goal of many of our ranking changes is to help searchers find sites that provide a great user experience and fulfill their information needs. We also want the 'good guys' making great sites for users, not just algorithms, to see their effort rewarded. To that end we've launched Panda changes that successfully returned higher-quality sites in search results.").
85. This relates to an interesting and revealing episode involving Google searches. In 2004, the top result in Google searches for "jew" was Jew Watch, which markets itself as "An Oasis of News for Americans Who Presently Endure the Hateful Censorship of Zionist Occupation" and features stridently anti-Jewish content. See JEW WATCH, http://www.jewwatch.com (last visited Apr. 10, 2013);
86. see also James Grimmelmann, The Google Dilemma, 53 N.Y.L. SCH. L. REV. 939, 943-45 (2008-2009);
87. Somini Sengupta, Opinion, Free Speech in the Age of YouTube, N.Y. TIMES, Sept. 23, 2012, at SR 4. This led a Jewish activist to link the word "jew" to a Wikipedia article instead of Jew Watch, followed by neo-Nazi efforts to point "jew" back to jewwatch.com. See Grimmelmann, supra, at 943. Activists also requested that Google change its search results so that they would exclude Jew Watch entirely, or, at a minimum, exclude it from search results for "jew." Id. As Grimelmann has noted, "Google could easily have changed their software so no trace of Jew Watch remained in its results pages, no indication that anything other than the usual process of looking for relevant results had ever taken place." Id. Google chose not to demote or remove Jew Watch, but it added a link to a Google site as one of the top results for "jew," with Google's own message. Id. at 943-44. The website, entitled An Explanation of Our Search Results, begins by stating, "If you recently used Google to search for the word 'Jew,' you may have seen results that were very disturbing. We assure you that the views expressed by the sites in your results are not in any way endorsed by Google."
88. An Explanation of Our Search Results, GOOGLE, http://www.google.com/ explanation.html (last visited Apr. 10, 2013). The website goes on to explain: A site's ranking in Google's search results relies heavily on computer algorithms using thousands of factors to calculate a page's relevance to a given query ⋯. The beliefs and preferences of those who work at Google, as well as the opinions of the general public, do not determine or impact our search results⋯. We will, however, remove pages from our results if we believe the page (or its site) violates our Webmaster Guidelines, if we believe we are required to do so by law, or at the request of the webmaster who is responsible for the page. Id. Thus Google, in both the content and placement of this webpage, engaged in speech, and a key element of that speech was its denial of the relevance of its workers' beliefs and preferences (though it noted the relevance of its guidelines in making its decisions about what to remove). As Grimmelmann noted in response: Is it really the case that search engine results are purely automated, impersonal things that don't reflect anyone's opinion at all? In one sense, passing the buck and saying "don't blame us, the computers did it" is an uncomfortable position for any computer programmer to take. Who, after all, gave the computer its instructions? The programmer did. Everything that Google's automated ranking system does, it does because Google programmers told it to. A computer is just a glorified abacus; it does what you tell it to⋯. And, of course, the "beliefs and preferences" of Google's employees and users do enter into its search results in another sense. The employees prefer that Google return results that the users believe to be useful. They optimize their algorithms all the time to make the results more relevant to their users' questions. They don't want you to get Jew Watch if you search for "mongolian gerbils." Grimmelmann, supra, at 944.
89. See An Explanation of Our Search Results, supra note 80 ("We assure you that the views expressed by the sites in your results are not in any way endorsed by Google.").
90. See Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, 8 YALE J. L. & TECH. 188, 189, 192 (2006) (titling his first section "Search Engines Make Editorial Choices" and stating that "search engines make editorial judgments just like any other media company"). For an example of Google debating how to improve searches for its customers,
91. see Google, Search Quality Meeting: Spelling for Long Queries (Annotated), YOUTUBE (Mar. 12, 2012), http://www.youtube.com/watch?v=JtRJXnXgE-A (showing Google's search quality team deliberating on algorithmic decisions during a meeting held on December 1, 2011).
92. For an explanation of the TCP/IP protocols, see Jonathan Strickland, How Does the Internet Work?, HOWSTUFFWORKS (May 7, 2010), http://computer. howstuffworks.com/internet/basics/internet1.htm.
93. See, e.g., Interactive Digital Software Ass'n v. St. Louis County, 200 F. Supp. 2d 1126, 1133-34 (E.D. Mo. 2002) (finding that video games are not speech for First Amendment purposes), rev'd, 329 F.3d 954 (8th Cir. 2003);
94. America's Best Family Showplace Corp. v. City of New York, 536 F. Supp. 170, 174 (E.D.N.Y. 1982) (same);
95. Marc Jonathan Blitz, A First Amendment for Second Life: What Virtual Worlds Mean for the Law of Video Games, 11 VAND. J. ENT. & TECH. L. 779, 785 (2009) (arguing that even nonnarrative video games and other "communication-free forms of electronic imagery" should be "staunchly protected");
96. Terri R. Day & Ryan C. W. Hall, Déjà Vu: From Comic Books to Video Games: Legislative Reliance on "Soft Science" to Protect Against Uncertain Societal Harm Linked to Violence v. the First Amendment, 89 OR. L. REV. 415, 450 (2010) (arguing that video games are "no less deserving of First Amendment protection than movies, works of art, and literature");
97. Patrick M. Garry, Defining Speech in an Entertainment Age: The Case of First Amendment Protection for Video Games, 57 SMU L. REV. 101, 122 (2004) (arguing against full First Amendment protection for video games);
98. Paul E. Salamanca, Video Games as a Protected Form of Expression, 40 GA. L. REV. 153, 194-205 (2005) (arguing against viewing video games as unprotected speech);
99. Kevin W. Saunders, Regulating Youth Access to Violent Video Games: Three Responses to First Amendment Concerns, 2003 MICH. ST. L. REV. 51, 101-05 (arguing that video games are noncommunicative and not speech for First Amendment purposes);
100. Anthony Ventry III, Note, Application of the First Amendment to Violent and Nonviolent Video Games, 20 GA. ST. U. L. REV. 1129, 1131 (2004) (arguing that "courts should apply a case-by-case approach in determining whether video games are constitutionally protected speech instead of deciding conclusively that all video games are (or are not) protected speech").
101. See supra notes 43-48 and accompanying text; see also Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2659 (2011) ("Speech in aid of pharmaceutical marketing ⋯ is a form of expression protected by the Free Speech Clause of the First Amendment.")
102. We could avoid such a result if we adopted a very broad definition of "core political speech," "democratic deliberation," or "self-government," but then we would end up back where we started. As Frederick Schauer has noted, Theories based on self-government or democratic deliberation have a hard time explaining why (except as mistakes, of course) the doctrine now covers pornography, commercial advertising, and art, inter alia - none of which has much to do with political deliberation or self-governance, except under such an attenuated definition of "political" that the justification's core loses much of its power. Schauer, Boundaries, supra note 5, at 1785.
103. This is obviously different from the question involved in Citizens United v. FEC, which involved limits on the use funds from the general treasuries of corporations. 130 S. Ct. 876 (2010).
104. See, e.g., C. Edwin Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 IOWA. L. REV. 1, 3 (1976) ("[G]iven the existing form of social and economic relationships in the United States, a complete denial of first amendment protection for commercial speech is not only consistent with, but is required by, first amendment theory.");
105. CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 123, 127 (1993) (arguing for little protection of advertising because it does not contribute to democratic deliberation).
106. See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561 (1980) ("The First Amendment ⋯ protects commercial speech from unwarranted governmental regulation."); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (applying First Amendment scrutiny to the regulation of commercial advertisements).
107. Cf. THE KINKS, GIVE THE PEOPLE WHAT THEY WANT (Arista Records 1981).
108. See, e.g., Reply Brief for Appellants Turner Broad. Sys., Inc. at 19-20, Turner I, 512 U.S. 622 (1994) (No. 93-44), 1993 WL 664649 ("A cable operator's very raison d'etre is to choose from among the enormous variety of sources of video programming available in order to put together a package of programming that will be appealing to television viewers."); Reply Brief for Appellants Discovery Commc'ns, Inc. and the Learning Channel, Inc. at 6, Turner I, 512 U.S. 622 (No. 93-44), 1993 WL 664652 (emphasizing the role of market forces in cable operators' choices of which channels to carry).
109. Tim Wu's contribution to this Symposium contends that under the Supreme Court's jurisprudence the crucial question is whether the alleged speaker adopts the information provided as its own. See Wu, supra note 6, at 1530. As I noted above, this distinction is inconsistent with the prevailing Supreme Court jurisprudence. Beyond that, it would not exclude all algorithm-based outputs from First Amendment coverage. The National Debt billboard, the "God is Dead" webpage, and the articles written by the journalist using boilerplate and by Narrative Science all entail adoption by their creators. Wu's focus on functionality would exclude certain categories of substantive editing, whether they were produced by humans or algorithms. His emphasis on search engines "merely pointing the user to [information]" applies with equal strength to human and nonhuman pointers. So a human who manually performs the functions of a search engine or an automated concierge would not be engaged in speech. By hypothesis, such a human would not adopt the information provided but instead would search for and retrieve it exactly as an algorithm would. Algorithms make such nonadoptive retrieval more common, but in Wu's formulation the line between algorithms and non-algorithms is not central to First Amendment coverage. This is an important area of agreement between Wu and me: algorithm-based outputs underscore the breadth of the test that the Supreme Court has developed, but do not provide a useful line at which to limit that breadth. In light of my focus on algorithms, in this Article I do not address the normative attractiveness, on their own terms, of proffered lines between speech and nonspeech that do not focus on algorithms (e.g., limiting First Amendment coverage to political speech, see supra note 88). Wu's line may well be a desirable one. I would note, though, that the line between adoption and pointing is no clearer than other lines in First Amendment coverage, and arguably much less clear. Many Web aggregators that would constitute speakers under most every definition of "speech" consist of links to webpages without any clear adoption or endorsement. See, e.g., ARTS & LETTERS DAILY, http://www.aldaily.com/ (last visited Apr. 10, 2013);
110. REDDIT, http://www.reddit.com/ (last visited Apr. 10, 2013).
111. On which side of the line do they fall? An individual at Arts & Letters Daily chooses the articles to which to link whereas Reddit uses an algorithm based on the popularity of a given link, but, as I noted above, nothing in Wu's focus on adoption turns on whether the entity choosing the links is a human or an algorithm created by humans. See Arts & Letters Daily, WIKIPEDIA, http://en.wikipedia.org/wiki/Arts-%26-Letters-Daily (last updated Feb. 10, 2013);
112. Reddit, WIKIPEDIA, http://en.wikipedia.org/wiki/Reddit (last updated Apr. 4, 2013). And the line between Reddit (which displays the most popular links of the moment at its top) and a search on Google for "the most popular links right now" is not obvious.
113. See, e.g., First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (noting that the First Amendment affords the public "access to discussion, debate, and the dissemination of information and ideas");
114. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976) (stating that the "freedom of speech 'necessarily protects the right to receive'");
115. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) ("In a variety of contexts this Court has referred to a First Amendment right to receive information and ideas." (internal quotation marks omitted));
116. Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("It is now well established that the Constitution protects the right to receive information and ideas.");
117. Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (stating that the freedom of speech includes "the right to receive");
118. see also Thomas I. Emerson, Legal Foundations of the Right to Know, 1976 WASH. U. L.Q. 1, 2 ("It is clear at the outset that the right to know fits readily into the first amendment ⋯.");
119. Thomas Scanlon, A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF. 204 (1972) (arguing that the First Amendment protects listeners' access to information and viewpoints and thereby protects autonomy).
120. See Va. State Bd. of Pharmacy, 425 U.S. at 756 ("Freedom of speech presupposes a willing speaker. But where a speaker exists, ⋯ the protection afforded is to the communication, to its source and to its recipients both.").
121. See, e.g., id.; Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2670-71 (2011) ("[T]he fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech. The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.") (citations and internal quotation marks omitted); Edenfield v. Fane, 507 U.S. 761, 767 (1993) ("The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish⋯. [T]he general rule is that the speaker and the audience, not the government, assess the value of the information presented.").
122. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (suggesting that the freedom of speech includes "the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences");
123. Jerome A. Barron, Access to the Press - A New First Amendment Right, 80 HARV. L. REV. 1641, 1666 (1967) ("It is to be hoped that an awareness of the listener's interest in broadcasting will lead to an equivalent concern for the reader's stake in the press, and that first amendment recognition will be given to a right of access for the protection of the reader, the listener, and the viewer.").
124. See, e.g., Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 4, 20-21 (1986) (plurality opinion) (holding that a state utility commission could not constitutionally compel a private utility company to include in its billing envelopes materials produced by an adverse group); Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (holding unconstitutional a state statute guaranteeing political candidates media access to respond to criticism). Indeed, the Supreme Court has largely abandoned its intimation in Red Lion that the First Amendment empowers the government to give access rights to listeners and viewers. As it turns out, broadcasting is the only area that the Court has treated as justifying a right of access - and even there, the Court has held that broadcasters have First Amendment rights (just diminished ones).
125. See, e.g., Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 414 (1996) (arguing "that First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives.");
126. Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767, 775-79 (2001) (asserting the centrality of a law's purpose in determining the appropriate application of the First Amendment).
127. See Sorrell, 131 S. Ct. at 2665 (applying First Amendment scrutiny to a regulation motivated by economic considerations and stating that, "[w]hile the burdened speech results from an economic motive, so too does a great deal of vital expression"); United States v. United Foods, Inc., 533 U.S. 405, 408, 417 (2001) (applying First Amendment scrutiny to an agricultural assessment requirement on the grounds that it compelled mushroom handlers to fund speech with which they disagreed); Turner I, 512 U.S. 622, 638 (1994) (applying First Amendment scrutiny to legislation while also finding that "Congress' overriding objective in enacting [a law requiring cable carriage of local television broadcasters] was ⋯ to preserve access to free television programming for the 40 percent of Americans without cable").
128. See NIETZSCHE FAMILY CIRCUS, http://www.losanjealous.com/nfc (last visited Apr. 10, 2013).
129. See, e.g., SCIGEN - AN AUTOMATIC CS PAPER GENERATOR, http://pdos.csail. mit.edu/scigen/#relwork (last visited Apr. 10, 2013) ("SCIgen is a program that generates random Computer Science research papers, including graphs, figures, and citations. It uses a hand-written context-free grammar to form all elements of the papers. Our aim here is to maximize amusement, rather than coherence." (emphasis omitted));
130. Timothy, Randomly Generated Paper Accepted to Conference, SLASHDOT (Apr. 13, 2005, 2:00 PM), http://entertainment.slashdot.org/story/05/04/13/1723206/ randomly-generated-paper-accepted-to-conference ("Some students at MIT wrote a program called SCIgen ⋯ [and] one of their randomly generated paper[s] was accepted to [the 2005 World Multiconference on Systemics, Cybernetics, and Informatics]. Now they are accepting donation[s] to fund their trip to the conference and give a randomly generated talk." (emphasis omitted)).
131. POSTMODERNISM GENERATOR, http://page112.com/iphone/pomo/ (last visited Apr. 10, 2013). The creators of The Postmodern Generator added the elegantly understated caveat that "submitting generated texts to journals or academic
132. See, e.g., SAMIR CHOPRA & LAURENCE F. WHITE, A LEGAL THEORY FOR AUTONOMOUS ARTIFICIAL AGENTS (2011) (extending legal principles to the unique challenges posed by the evolution and increasing sophistication of artificial agents).
133. On the Turing test, see David Dowe & Graham Oppy, The Turing Test, STANFORD ENCYCL. of PHIL. (Jan. 26, 2011), http://plato.stanford.edu/entries/ turing-test (noting that a machine passes the Turing Test when a person is unable to detect that she is conversing with a machine instead of a fellow person).
134. On the legal implications of machines capable of meeting the Turing standard, see generally JAMES BOYLE, BROOKINGS INST., ENDOWED BY THEIR CREATOR? THE FUTURE OF CONSTITUTIONAL PERSONHOOD 6 (2011), available at http://www.brookings.edu/~/media/research/files/papers/2011/3/ 09%20personhood%20boyle/0309-personhood-boyle ("In the coming century, it is overwhelmingly likely that constitutional law will have to classify artificially created entities that have some but not all of the attributes we associate with human beings.").
135. See Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) ("[G]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news."). The Supreme Court has invoked this principle in a long line of antitrust cases. See infra note 123 and accompanying text. Some have argued that Cowles Media's statement sweeps too broadly. See Cowles Media, 501 U.S. at 676-77 (Souter, J., dissenting) ("[T]his case does not fall within the line of authority holding the press to laws of general applicability where commercial activities and relationships, not the content of publication, are at issue."); Alan E. Garfield, The Mischief of Cohen v. Cowles Media Co., 35 GA. L. REV. 1087, 1095 (2001) ("[T]he fact that a law is generally applicable does not necessarily mean there is no need for further First Amendment analysis.");
136. Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 CORNELL L. REV. 1277, 1294 (2005) (distinguishing "a facially speech-neutral law, which is to say a law applicable to a wide variety of conduct, whether speech or not," from "a facially press-neutral law, which is to say a law applicable equally to the press and to others," and stating that the language from the Cowles Media majority opinion quoted above "only means that the press gets no special exemption from press-neutral laws. The Court didn't consider whether speakers were entitled to protection from speech-neutral laws, especially when those laws are content-based as applied"). None of these critics argues, however, that generally applicable laws not aimed at content, such as antitrust and tax laws, should in fact be subject to First Amendment scrutiny. See Garfield, supra, at 1094 ("[O]ne can hardly disagree ⋯ that the press is not exempt from laws of general applicability. Surely the First Amendment does not immunize the press from obeying fire safety laws in its buildings or from having its delivery trucks obey the speed limits."); Volokh, supra, at 1294.
137. One of Felix Gonzalez-Torres's "signature works" was "Untitled (Placebo - Landscape - for Roni)," which consisted of hard candy wrapped in cellophane on a concrete floor. See Cate McQuaid, Sweet but Not Sugarcoated, BOSTON.COM (Dec. 13, 2007) http://www.boston.com/ae/theater-arts/ articles/2007/12/13/sweet-but-not-sugarcoated.
138. Even seemingly anarchic Internet communities like 4chan have moderators (and junior moderators, known on 4chan as "janitors") whose role is made clear on the website. FAQ: What Are "Janitors"?, 4CHAN, http://www.4chan.org/faq#whojan (last visited Apr. 10, 2013).
139. Specifically, the Court stated: [I]n the Noerr case the alleged restraint of trade was the intended consequence of public action; in this case the boycott was the means by which respondents sought to obtain favorable legislation. The restraint of trade that was implemented while the boycott lasted would have had precisely the same anticompetitive consequences during that period even if no legislation had been enacted. Superior Court Trial Lawyers Ass'n, 493 U.S. at 424-25.
140. See Time Warner Entm't Co. v. FCC, 56 F.3d 151, 181-82 (D.C. Cir. 1995) (addressing the First Amendment's application in a single sentence).
141. See Christopher S. Yoo, Architectural Censorship and the FCC, 78 S. CAL. L. REV. 669, 687 (2005) (contending that "rate regulation had the unintended consequence of degrading the quality of existing cable offerings and foreclosing the emergence of higher quality channel packages despite viewers' willingness to pay for them").
142. The Supreme Court has invalidated statutes giving local officials authority to permit or ban distribution of newspapers and other forms of speech, but those cases focused on the possibility of content and viewpoint discrimination created by unbridled discretion to permit or ban. See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 767-68 (1988) ("[T]his Court has long been sensitive to the special dangers inherent in a law placing unbridled discretion directly to license speech, or conduct commonly associated with speech, in the hands of a government official.");
143. see also Saia v. New York, 334 U.S. 558, 562 (1948) ("When a city allows an official to ban [loud-speakers] in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas."); Lovell v. City of Griffin, 303 U.S. 444, 450-51 (1938) (invalidating a regulation prohibiting the distribution of leaflets without the approval of the city manager). Indeed, in Plain Dealer the Court stated, This is not to say that the press or a speaker may challenge as censorship any law involving discretion to which it is subject. The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks. 486 U.S. at 759.
144. Commerce Clause jurisprudence provides a point of comparison. Even after United States v. Lopez, the Supreme Court's interpretation of Congress's interstate commerce power has been so expansive that almost every imaginable piece of federal legislation is authorized by the commerce power. See 514 U.S. 549, 567 (1995) (refusing to hold that "the possession of a gun in a local school zone" reflects economic activity that rises to the level of interstate commerce and thus implicates the commerce power); see also United States v. Morrison, 529 U.S. 598 (2000) (holding a federal statutory remedy for the victims of gender-motivated violence unconstitutional because it did not comport with the Commerce Clause). Cf. Gonzales v. Raich, 545 U.S. 1 (2005) (upholding the constitutionality of the Federal Controlled Substances Act as applied to intrastate, noncommercial cultivation and possession of marijuana under the Commerce Clause). Some of those concerned about this development (notably Justice Thomas) have argued for a radical reorientation of the Court's jurisprudence. See Lopez, 514 U.S. at 584 (1995) (Thomas, J., concurring) (arguing that the Court "ought to temper [its] Commerce Clause jurisprudence"); Morrison, 529 U.S. at 627 (Thomas, J., concurring) (criticizing the Court's "view that the Commerce Clause has virtually no limits" and advocating for a shift to a "standard more consistent with the original understanding"). Others have argued for drawing ad hoc, and arguably arbitrary, lines to limit the expansion of that power. Both of these positions were articulated (minus any concession of possible arbitrariness) in arguments against the constitutionality of the Affordable Care Act. Some advocates argued for a radical revamping of Commerce Clause jurisprudence.
145. See, e.g., Brief for Virginia Delegate Bob Marshall et al. as Amici Curiae in Support of Respondents at 11-14, Dep't of Health & Human Servs. v. Florida, 132 S. Ct. 2566 (2012) (No. 11-398), 2012 WL 484059 (Feb. 13, 2012)
146. (arguing for a reconsideration of the Court's Commerce Clause cases, particularly Wickard v. Filburn, 317 U.S. 111 (1942),
147. and United States v. Darby, 312 U.S. 100 (1941)).
148. Many more pushed for a distinction between activity and inactivity. They often acknowledged that the distinction was ad hoc, and that they preferred a more fundamental rethinking of Commerce Clause jurisprudence. But they saw the action-inaction distinction as a tenable way of limiting Commerce Clause expansion without entailing a radical reorientation of the jurisprudence. See, e.g., Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U.J.L. & LIBERTY 581, 619 (2010) ("Of course, like the distinction between economic and noneconomic activity, the activity-inactivity distinction would not perfectly distinguish between incidental and remote exercises of implied powers. But, however imperfect, some such line must be drawn to preserve Article I's scheme of limited and enumerated powers."). Whatever the merits of that argument in the Commerce Clause context, I think drawing a line between algorithm-based and human-based decisions for purposes of First Amendment coverage is so arbitrary as to be undesirable.
149. See, e.g., ERIK BRYNJOLFSSON & ANDREW MCAFEE, RACE AGAINST THE MACHINE: HOW THE DIGITAL REVOLUTION IS ACCELERATING INNOVATION, DRIVING PRODUCTIVITY, AND IRREVERSIBLY TRANSFORMING EMPLOYMENT AND THE ECONOMY (2011) (arguing that innovations in information technology will, inter alia, destroy many jobs).
150. Or so our computer overlords would have us believe. See Jeopardy! (ABC television broadcast Feb. 15, 2011) (documenting the reaction of Ken Jennings, the most successful Jeopardy! player of all time, upon realizing that he was going to lose to an IBM computer named Watson). In his final answer, Jennings paraphrased the venerable Simpsons: "I FOR one welcome our new computer overlords." Id.; see also Melissa Maerz, Watson Wins "Jeopardy!" Finale; Ken Jennings Welcomes "Our New Computer Overlords," L.A. TIMES (Feb. 16, 2011), http://latimesblogs.latimes.com/showtracker/2011/02/watson- jeopardy-finale-man-vs-machineshowdown.html;
151. Ratzule, Watson the New Computer Overlord, YOUTUBE (Feb. 16, 2011), http://www.youtube.com/watch?v=Skfw282fJak (video of Jennings's answer and Watson's victory).