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

[blahplusplus]

"tended to ensure that ideas cannot be censored."

We already have that with copyright law and intellectual property, the corporations have essentially defeated certain forms of culture from ever appearing (i.e. no public domain anymore). For instance one might ask why one cannot repair old software or why customers can't own games and get source-code for old (no longer sold) games for instance so fans/customers can fix up and pass them no to future generations. These things should be in a library after x many years. Things like the following:

http://www.youtube.com/watch?v=xhAR8rWPluQ

Are increasingly impossible with "property" laws expanding into every domain it doesn't belong in all to protect someones profits.

Re:It is about not lettting ideas be silenced

[geekoid]

Incorrect:
" 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 "
yes, it does.
Many people find speech against them is offensive.
Church's always find any speech that doesn't agree with them to be offensive.

You should read the federalist papers, and other documents the founding fathers wrote. Also understand formal written speech of the time. It's enlightening and give the Constitution context.

Re:It is about not lettting ideas be silenced

[IndustrialComplex]

So how do you reconcile this eventual outcome:

Corp A: newspaper
Corp B: movie studio
Corp C: social cause organization.

Can the government censor Corp A? Can they censor Corp B? Can they censor Corp C?

If the government can censor Corp C but not B, what if corp C produced a movie for their cause?

In your attempt to exclude organizations from inheriting the rights of the people who make up those organizations, you end up granting the government the authority to censor individuals by granting authority over all potential communication mediums beyond simple person to person speech.

The only way to get around that is to either grant very specific exemptions to government authority for certain types of corporations, that's a non starter because it would rely upon the government to define and regulate who falls into those corporations. In addition, it would default to a ban on speech for new communication methods until it was pre-approved for use.

An example of this in practice now is the broadcast television market vs content unregulated markets (internet/subscription/etc). Broadcast television has to pull a lot of punches or content because it falls afoul of the FCC's guidance.

Imagine now, that the FCC were not only regulating so-called vulgar content, but also tasked with evaluating political content! An organization would have to be very careful not to publish too much speech which could be considered 'organization' speech and not 'person speech'.

Fortunately or unfortunately, we really can't declare organizations of people to not inherit the rights of the people who make up those organizations without vastly reevaluating that which forms the very foundation of our system of governance.

Re:It is about not lettting ideas be silenced

[dgatwood]

To a point. Beyond a certain point, however, an organization of people can amass the ability to speak at sufficient volume (both in loudness and in quantity) to effectively drown out dissenting voices. Thus, in order to guarantee free speech for the individual, to some degree, the speech of large groups must be kept in check.

This applies whether the large group is the government, a PAC, a corporation, a union, or pretty much any other group of people who have united for a single purpose. For example, the U.S. government is structured very deliberately to minimize tyranny of the majority.

Similarly, commercial speech (e.g. advertising) has limits that require a degree of truthfulness. Commercial speech is not really different from any other speech, apart from the fact that the people doing the speaking have the presumption of authority and the volume to back up that presumption. We just have more laws to cover that corner case because it is fairly common and is often egregious. :-)

Re:It is about not lettting ideas be silenced

[Hatta]

The problem is, the offensive part of most speech is the content, not the form. Is the statement that "non-violent marijuana users deserve to be sent to prison" really any less offensive than "fuck Obama"? I would argue that the former is absolutely more offensive by any rational criterion. In fact, there is nothing that could be censored that would offend me more than the act of censoring it.

Censorship itself is offensive, and if you use offense to justify censorship you have to take that into account and prohibit censorship on the grounds that it is offensive.

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.

Re:It is about not lettting ideas be silenced

[Obfuscant]

It is a real dilemma, and perhaps something that was not anticipated by the Constitution.

Obviously, prior to the Constitution, there never were such things as unions (guilds) made up of people with common ideas (trades) who might try to influence governments to do things that support them. There were no groups that any of the founders of the US were familiar of, despite the following from here:

During the late 1700s it was one of the organizations most responsible for spreading the ideals of the Enlightenment: the dignity of man and the liberty of the individual, the right of all persons to worship as they choose, the formation of democratic governments, and the importance of public education. Masons supported the first public schools in both Europe and America.

I think any argument that tries to claim that "special interest groups" weren't forseen by the founders who wrote the constitution is epic fail.

Re:It is about not lettting ideas be silenced

[Quila]

Today the greatest threat to democracy is the power of special interest groups. These groups have agendas of their own, and they act in ways that their individual members might not

Like unions! They oppose laws that restrict their ability to use their members' money to influence elections even when the beliefs of the union are opposite the beliefs of the member. Unfortunately, for many people quitting the union is not a realistic option due to various laws (no right to work) and circumstances. Members of the NRA or Greenpeace can just opt to not renew. Shareholders in corporations can sell their shares. But union members are mostly screwed.

Re:It is about not lettting ideas be silenced

[Quila]

Under the "organizaitons have no rights" idea, I and my friends can individually spend our money to buy ad time to promote the cause, and we would have the right to do it as individuals. But if we pool our money to buy an ad, we would lose all rights to air it.

Re:It is about not lettting ideas be silenced

[Archangel Michael]

Sex for money should be legal, and regulated. Making it illegal doesn't do anyone any good, because it still happens in sufficient amounts of places that the law itself is non-effect. If prostitution were legal, then we would be able to license workers, require them to carry sufficient health and liability insurance, keep proper records of clients that the negative effects (if any) are mitigated significantly. At this point, government cannot mitigate anything, except by "crackdown".

Re:It is about not lettting ideas be silenced

[JackieBrown]

No having rights granted to a collective doesn't imply that the individuals lose their rights. The individuals are still individuals regardless of what they come together and do.

So unions should not have rights?

Re:It is about not lettting ideas be silenced

[Obfuscant]

"What good is a phone call, if you are unable to speak?"

http://en.wikipedia.org/wiki/Telecommunications_device_for_the_deaf

http://www.access-board.gov/telecomm/rule.htm

While the common use of TDD is for deaf, they usually have a speechless mode of data entry that a mute person could use.

Since we're talking about removing rights of free speech from people who have joined a corporation, you're question is actually relevant, but I suspect you were trying to claim that the "right to be heard" is somehow involved in not being able to speak at all. You're right, silencing people is bad, but forcing others to listen to everything someone has a right to say is, if not worse, as bad.

Imagine the laws: "you will watch TV tonight at 7PM so you can hear the free speech from the following individuals. Your viewing will be monitored and you will have to answer a quiz to test your comprehension." The "right to be heard" is not implied in the right to free speech, as much as some people would like it to be.

Re:It is about not lettting ideas be silenced

[sjames]

There is no need for the organization to become it's own legal entity. The individuals assemble as is their right. They arrive at a consensus and then an individual uses his/her own free speech rights to make a statement on the group's behalf.

Re:It is about not lettting ideas be silenced

[bws111]

What you're complaining about is not lack of freedom, it is lack of fairness. As soon as fairness comes into the picture, freedom leaves (as ensuring fairness requires restricting freedom).

Re:It is about not lettting ideas be silenced

[Holladon]

I'm thinking genuine original creative ideas vs. an algorithm that just combines words according to preset rules. I don't think we're quite there yet.

What's the difference between that and poetry that adheres to existing rules? Is a high school student's perfectly-metered, rhymed poem any less deserving of First Amendment protection than a seasoned poet's taking of creative license, just because the merit of the high school student's poem was purely technical? In fact, language itself is just a set of rules. Creative expression occurs within those rules -- sometimes the creativity comes in breaking them, yes (although even then, you can only break so many before your expression totally loses coherence and, with it, artistic value -- even rebellious art exists in reaction to, and therefore in a sense in conformance with, rules), but more often it comes in using them in a way that is deemed by some collective subset of people to be sufficiently unique as to be "creative" or "high art" or whatever. But it's still just people following the rules in different ways. We only think computers are different because we don't view what computers do as "thought," because we created them and therefore they are "artificial" (although can you tell me why it is that any computer language even WORKS in the first place?) -- but, of course, even the most decorated and accomplished neurophysicist in the world couldn't tell you with absolute certainty what "thought" even **IS**.

Re:It is about not lettting ideas be silenced

[AK Marc]

Unions are the GPL of organizations. If corporations didn't have special rights, unions would not need to use those same rules to form a counter-group.

It's ironic

[destinyland]

I was really surprised there were almost no comments on this story...

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.

Re:speech

[Quila]

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

Source code communicates to a compiler how the compiler is supposed to function. But a binary communicates to the operating system and hardware how they are supposed to function. The binary is effectively your original communication interpreted into a different language, which, if it were a book, would be covered. Also, it is possible to write the machine language binary data from scratch, just as values inserted into memory locations, which would make the binary itself your source code. I've written that way.

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.

Re:Subjectivity Is Very Dangerous!

[JesseMcDonald]

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.

Punishing someone for speech after the fact is still censorship. In fact, censorship in practice, at the level of law, consists almost exclusively of punishing someone after the fact for unwanted speech. The presumption that speech involving libel, slander, etc. will be met with punishment is no less censorship than the presumption that speech criticizing the government will be met with punishment.

Libel and slander are not properly a matter for courts. First, one does not have a right to one's reputation, which would amount to a right to how other people think of you. Damage to your reputation is thus not something you should have legal standing for. Second, suing over libel or slander is counter-productive; it serves only to show how much you want to shut someone up. The more force you bring to bear against someone defaming you, the more credibility you lend to their statements. If the defamation is true then the damage to your reputation is deserved; if not, then the correct response is to educate and persuade, not to make threats.

In the case of "criminal intent" or other threats, you're not being punished for the speech; the response is pure self-defense. If you claim that you are going to harm someone, it is reasonable for them to believe that you will actually carry through with it and respond accordingly. (This could possibly be interpreted as a form of estoppel.) Naturally, the normal rules for preemptive self-defense apply: imminent threat of irreversible harm.

Re:So... another attack on free speech.

[isilrion]

I agree with you in principle, but:

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.

There is one, very important, difference: asking google to retrieve information is much more efficient than requesting a secretary to do so. That's pretty much the point of asking google. There are people in this forum who will claim that the difference is essential. I find that position nonsensical, but by ignoring it, you leave open a point of attack. So I would make your conclusion more explicit:

The "report" in both cases should be considered free speech, regardless of how efficient were the means used to obtain it.

(I would also go beyond free speech here and include those actions that are considered correct or legal to do by yourself but become illegal if you ask someone else for assistance, free or not. But extending on this idea would probably be offtopic)

Freedom of the press

[sourcery]

The First Amendment also prohibits violation of the freedom of the press--which when written, referred to the technology of publishing, and not just to the profession of journalism.

A computer is a press in the sense meant by the First Amendment.

Hope it is speech, then it can't be patented.

[140Mandak262Jamuna]

May be this is how we beat the insane software patents. Declare them as speech. Give the programmers first amendment protections. Then at best software can be copyrighted. So all software patents would become invalid! hooray!

Re:I'm confused...

[CanHasDIY]

Why wouldn't speech that is produced by a child be speech from its parents?

Really? You've gotta be trollin' me...

Maybe because children and parents are individual entities both endowed with their own, separate rights by the Constitution.

Conversely, a software program is a piece of work, created by a human, that has no rights.

As far as strawmen go, the one you built here is about as piss-poor as they can get.

Re:Why?

[Hatta]

Software doesn't need free speech. Authors of software need free speech.

A computer is a tool

[davidwr]

Just about any information-processing software can do a person or team could do if they had infinite time and storage space.

Perhaps it would make more sense to look at "computer-generated" speech as if a person or team of people was "running the algorithm" and presented the result to the person asking for the data.

For example, if in the pre-computer, pre-health-privacy era my boss asked me to give him a report of what doctors had prescribed what drugs in the state for the previous year, I would go and talk to each doctor, buy the information from them, write my report, and hand it to him. If it's legal for a non-automated, all-human process to generate and publish this report, then it should be legal for a computer to do so. If it's not legal for people to do it - say, due to privacy laws - then having a computer do it shouldn't change the legality.