On Friday I mentioned Tim Wu’s op-ed last week, which asked if machines “have a constitutional right to free speech”? The question is posed in such a way that the obvious answer seems to be “no,” so it naturally drew responses which simply pose the question the other way: Timothy Lee at Ars Technica asks, “Do you lose free speech rights if you speak using a computer?”, and Julian Sanchez suggests that Wu’s argument would effectively remove First Amendment protection from any speech communicated via a machine. Paul Levy and Eugene Volokh similarly argue that while machines obviously don’t have speech rights, the people using the machines do, and Wu’s examples (e.g., Google’s search results) are the speech of the humans who designed the algorithm behind it.

I think the distinctions here are trickier than any of these pieces, including Wu’s, let on. (Frank Pasquale appears to agree.) My own view, as suggested in my previous post, is that at least for copyright purposes, the more the machine contributes to the substance of the content, the less it is the speech of the humans behind it. But the distinction both First Amendment law and copyright impose is binary: something is either your speech or not your speech. Trying to figure out exactly where that transition occurs — even in principle — is difficult.

Let’s set up a spectrum of possibilities. So here’s the spectrum (click to enlarge):