Speech by Proxy

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):


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Artillery on Appeal: Proportionality and the International Criminal Tribunal for the Former Yugoslavia

Last month, the International Criminal Tribunal for the Former Yugoslavia (ICTY) heard oral arguments in the important case of Prosecutor v. Gotovina.  The case concerns the decisions of General Ante Gotovina, the commander of Croatian forces during Operation Storm in August of 1995.  The case’s outcome may have far reaching implications on the practical application of the law of armed conflict.

The Gotovina prosecution arose out of Operation Storm, a massive Croatian military effort to retake Serbian controlled areas of Croatia.  In brief, and painting with a broad brush, it came in the wake of the Srebrenica Massacre, which later the U.N. Secretary General called the worst crime in Europe since World War II.  At Srebrenica, Serbians under Ratko Mladic murdered over 8,000 Bosnian men and boys in an effort to drive Bosnians from the area.  Operation Storm came on the heels of the massacre, and was an overwhelming success.  The Serbian forces were devastated.  Their leaders were forced to the negotiating table, and the peace accords soon followed.

After the war, the ICTY’s Office of the Prosecutor indicted Gotovina for war crimes arising from the targeting decisions he oversaw while commanding his forces in Operation Storm.  Gotovina went into hiding, but he was apprehended on December 7th, 2005.  On April 15, 2011, the ICTY Trial Chamber convicted Gotovina, concluding that he deliberately executed indiscriminate attacks during Operation Storm resulting in civilian deaths.

The potential significance of the Trial Chamber’s judgment, and the pending appeal, cannot be overstated.  As an Emory panel of experts offered, “[T]he manner in which [the law] is enunciated and applied in the Gotovina judgment has extraordinary import for future operations and conflicts.  The case is apparently the first – and likely the only – case assessing complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault.”

Continue ReadingArtillery on Appeal: Proportionality and the International Criminal Tribunal for the Former Yugoslavia

Do Video Games Dream of Electric Speech?

Tim Wu had an interesting op-ed column in Wednesday’s New York Times: Free Speech for Computers? Wu’s op-ed is in part a response to a paper co-authored by Eugene Volokh, entitled “First Amendment Protection for Search Engine Search Results.” (See also Volokh’s response; criticism by Tim Lee and Julian Sanchez.) Volokh and his co-author, Donald Falk of Mayer Brown, argue that search results, for example those produced by Google (which commissioned the paper), should be treated as speech worthy of First Amendment protection. (Hail, Search King!) Wu argues that this argument threatens to “elevate our machines above ourselves” by “giv[ing] computers . . . rights intended for humans.” The purpose of the First Amendment, Wu writes, is “to protect actual humans against the evil of state censorship.” But computers don’t need that protection: “Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us.” Wu concludes: “The line can be easily drawn: as 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.”

This debate intrigues me, not so much for how it applies to Google (although that is interesting too), but for how it applies to video games.

Continue ReadingDo Video Games Dream of Electric Speech?