Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. My new essay, titled “What Happens if Data is Speech,” considers the next question in this emerging area of the law. What happens next? I approach this inquiry from three angles.
First, I explore how affording constitutional scrutiny to data-based outputs impacts the validity of data privacy laws. Second, I turn to the power of search engines, and consider which poses a greater threat to free expression: the lack of regulations of these powerful intermediaries, or the regulations themselves. As search engines evolve into decision engines, and more of our choices are informed by the outputs of these algorithms, this tradeoff becomes important based on what the search engines choose to reveal, and obscure.
I conclude by offering a framework of how courts should treat algorithmic outputs for purposes of the First Amendment, based on their nexus with human interaction. The more the human interacts, the closer the communication will be to something the human created herself, and something that warrants protection. In contrast, outputs that are created with isolated autonomy, and involve little personal involvement depart further from the humanistic expression that warrants protection. Whatever regime the courts settle on must confront this interwoven nature of human-computer interactions.
This essay builds on the important scholarship of three articles in this field: Jane Bambauer’s Is Data Speech in the Stanford Law Review, Stuart Benjamin’s Algorithms and Speech in the Pennsylvania Law Review, and Tim Wu’s Machine Speech, also in the Pennsylvania Law Review. I discuss these articles here.