The First Amendment and Software Speech

First time accepted submitter stanlrev writes "When is software, or content generated by software, 'speech' for First Amendment purposes? That is the question that Andrew Tutt seeks to answer in an article published today in the Stanford Law Review Online. He argues that the two approaches commentators and the Supreme Court have proposed are both incorrect. Software or software-generated content is not always speech simply because it conveys information. Nor is software only speech when it resembles traditional art forms. Instead, the courts should turn to the original purposes of the First Amendment to develop a new approach that answers this question more effectively."

Comments

It is about not lettting ideas be silenced

[cjonslashdot]

I am not a Constitutional scholar (although I have read the Constitution and refer to it frequently), but I would presume that "freedom of expression" and "freedom of speech" are intended to ensure that ideas cannot be censored. And since the Constitution is about the rights of people and government, I also presume that the right pertains to people - not organizations. Organizations are not people, just as a pack of dogs is not a dog and a mob of people is not a person. And not machine generated content: such content is not necessarily the output of people, unless a person arranges for a _specific_ machine output in order to express an idea. If the 1st Amendment is truly about ensuring that ideas cannot be censored, then free speech is not about permitting anyone to say purposely offensive things (i.e., the form of their speech), but about their right to express (perhaps politely) the _ideas_ contained in their speech.

Re:It is about not lettting ideas be silenced

[Quila]

Organizations are not people, just as a pack of dogs is not a dog and a mob of people is not a person.

However, an organization is made of people, and do they lose all of their rights as part of the organization? You and a bunch of friends don't like people killing kittens, and you use your full constitutional ights to fight the killing of kittens. To be more efficient, you decide to form an official organization to promote your cause and fight under its mantle. Now, because you did that, you lose your rights, making your efforts less effective?

For machine generated content, I'll accept that when machines start having original ideas.

Re:It is about not lettting ideas be silenced

[DarkOx]

I agree with your argument but I would also add that because the Constitution also secures a right to assemble, its clear to me at least that an Organization is a first class entity just like an individual. The right of individuals to express themselves by forming an organization and acting as unit should be protected.

Re:It is about not lettting ideas be silenced

[Obfuscant]

Thus, in order to guarantee free speech for the individual, to some degree, the speech of large groups must be kept in check.

You're confusing the right of free speech with the right to be heard. The former is protected, the latter is not. E.g., you have the right to say something. You don't have the right to force me to hear you.

In any case, this is a very dangerous road to start travelling on. Who decides when "a group" is "too large" to have First Amendment rights anymore? Is George Soros, with billions of dollars, "too large" and likely to have too loud a voice to have the right to use that voice? Citizen's United was apparently "too large" to have the right to free speech, even though they were a corporation formed explicitely for the purpose of making political speech and were trying to buy airtime in the face of a much larger organized political party.

Commercial speech is not really different from any other speech,

Yes, it is. Speech trying to sell you something (a product with a price) is much different than someone trying to convince you of an opinion. There is existing case law differentiating the two.

So... another attack on free speech.

[Anonymous Coward]

There is no difference between asking google to retrive information and provide a report than it is to request a secretary to find all references to a contract and provide a report.

The "report" in both cases should be considered free speech.

speech

[phantomfive]

Some courts go by the rule that if something is used as an attempt to communicate, then it is speech.
Other courts have gone by the rule that if it transmits information, it is speech.

I prefer the first rule, but this guy doesn't like either. He thinks that if something is generally accepted by society to be a method of speech, then it is speech.

He seems to come to this conclusion because in that case, he assumes software like word processors, servers, operating systems, etc, are not free speech.

Personally I prefer the courts that say if something is an attempt to communicate, then it is speech. A word processor is not an attempt to communicate, it is a tool. The source code of a word processor, however, most definitely IS a communication. It's not clear the poster understands the difference between source code and binaries.

Subjectivity Is Very Dangerous!

[eldavojohn]

And not machine generated content: such content is not necessarily the output of people, unless a person arranges for a _specific_ machine output in order to express an idea. If the 1st Amendment is truly about ensuring that ideas cannot be censored, then free speech is not about permitting anyone to say purposely offensive things (i.e., the form of their speech), but about their right to express (perhaps politely) the _ideas_ contained in their speech.

I'm no constitutional scholar either but I feel you are proposing very subjective measurements. Once it gets to the point of you deciding what is and isn't protected free speech by way of how nice, specific or worthwhile you are pretty much censoring based on what you personally feel is or isn't acceptable!

Right now, we don't actively censor people who wish to yell "FIRE!" in a crowded theater. For what if there was a fire in said theater? Instead, we let everything be said and then if it is felt that libel, slander, criminal intent, death threats, etc were said, you may bring it to the attention of a court of law. Even those make free speech an uneasy topic but they have tried to codify those conditions as best as possible.

Imagine a judge determining what is "nice" enough to leave up and what is "purposely offensive" enough to take down. If some heavy metal band wants to write a song that consists entirely of cursing and intercourse references and other people enjoy said music, who am I to demand that be taken down by how offensive it is?

Free speech is about free speech. Not ideas, not being nice, not worrying about offending some prude. There are laws that are applied after the fact but you should be able to say whatever you want! Did we not just cover this in the last story? Look at the UK and how absurd some of their free speech cases are! They must decide what is "grossly offensive" and what is "merely offensive" to determine if someone goes to jail!

Re:Subjectivity Is Very Dangerous!

[Anonymous Coward]

Again, for your benefit: Libel is a standard. Loss of money can be proved. Loss of life can be proved. In the case of "fire" in a theater, lying can be proved.

However: Nice is not a standard. Specificity is not a standard. Offensive cannot be proved.