United States: Applying The First Amendment To Artificial Intelligence

Americans are rightly proud and protective of the freedom of speech contained in the First Amendment of the Constitution. Arguably, this right has done more to protect the Constitution and Americans than any other clause in that document. With very limited exceptions, it ensures that anyone in the nation can speak truth to power, express their opinion without government retribution, and shout an idea just for the sake of being heard by someone or no one. But as artificial intelligence grows in sophistication and we have more regular interaction with speech from autonomous programs like Amazon's Alexa, more people are beginning to wonder if the First Amendment is or should be so broad that it protects human and non-human speakers alike. A plain reading of the First Amendment suggests that the Constitution's protection of freedom of speech is not limited to human beings, but extends to AI and autonomous programs. However, that understanding of the First Amendment is controversial, and parties that rely on such technologies in their business and marketing plans should be aware that more limited interpretations are possible.

Autonomous Expression

Autonomous speech has already begun to occupy a growing space in American public and private discourse. For example, researchers examining social media activity leading up to the 2016 U.S. presidential election have documented the extent to which autonomous bots created content on social media in an attempt to influence voters.1 Additionally, 39 million Americans own a smart speaker that operates an AI-powered personal assistant like Amazon's Alexa or Google Home.2 These home AI systems converse with people in the household, and their designers have already begun to suggest that the First Amendment protects their speech.3

Speech from some autonomous bots has proven so controversial that their programmers shut down their creations. "Tay," the AI system created by Microsoft's Technology and Research and Bing teams that operated a Twitter account very briefly in 2016, was intended to tweet as a normal teenage girl and learn from the other Twitter accounts that interacted with it. Unfortunately, based on those interactions, Tay became racist and anti-Semitic, forcing Microsoft to deactivate the account less than 24 hours after first going online.4 In 2015 Amsterdam police questioned the programmer behind a Twitterbot that autonomously tweeted "I seriously want to kill people" at a fashion event in the city. The bot was programmed to create comprehensible sentences based on "random chunks" of the creator's actual Twitter feed, not to tweet with particular meaning or intent. Although the programmer explained this to the police, apologized, and deleted the bot, he also claimed he didn't know "who is/should be held responsible (if anyone)."5

Autonomous programs produce more than tweets and at-home banter. Companies like Narrative Science and Automated Insights have developed artificial intelligence systems that analyze large datasets to produce natural language stories autonomously. Narrative Science has worked with the Big Ten Network to produce short recaps of Big Ten Conference games within minutes of the conclusion of each game.6 Automated Insights claims that it produces more than 1.5 billion pieces of content a year for customers like the Associated Press, Yahoo, and Price Waterhouse Cooper.7 Other AI is expressing itself in different mediums, including visual art and music.8

This means that AI and autonomous programs are and will continue to create speech and expression for businesses and individuals in a variety of functions: marketing, reporting compliance, customer service, etc. How those parties use the technology will be shaped, in part, by the protection of the First Amendment.

How the First Amendment May Protect Artificial Intelligence

To be clear, the issue under consideration here is not how private companies govern autonomous speech. There does not appear to be any doubt that companies like Facebook and Twitter can ban autonomous accounts in their user agreements. But it is still undecided what local, state, and federal governments can do to autonomous speech from AI. Below, I outline the four major positions regarding how autonomous expression should be treated under the First Amendment. Although all four pose logistical, business, and legal concerns to parties using autonomous programs for speech and expression, those concerns exist any time a person or business speaks. However, the first three models are more problematic than the fourth.

1. Speech produced by AI/Autonomous Programs is not speech that is protected by the First Amendment. Under this model, the federal government and states can regulate and prohibit speech from AI however they want, with none of the constitutional limits that have historically applied to speech produced by human beings. This could be used as a blunt measure to use against any expression by AI that is unpopular or controversial, if the party relying on AI is unpopular, or if the elected leaders want to penalize that party.

However, there are a few issues with this approach. The first is enforceability. Twitter has hundreds of millions of accounts, Facebook has billions, and even much smaller companies likely have thousands of accounts that could experience autonomous activity. Is it logistically possible for them to effectively police all of those accounts and terminate the ones with autonomous activity? Social media companies typically only respond to user complaints, and other industries are similar. What would the penalty be? Are there fines for each autonomous account or instance of autonomous expression discovered by law enforcement? 

Professor Tim Wu from Columbia Law School has noted that the primary concern of the First Amendment is the listeners and viewers, not the speaker or broadcaster9. To the extent that autonomous programs provide content that real people find interesting or worthwhile, this interpretation of the First Amendment hurts those people. The First Amendment is intended to preserve a marketplace of ideas in which all opinions are able to come forward and be considered, with the best ones winning in the long run. Prohibiting any ideas – even autonomously created ones – is contrary to that purpose.

2. AI/Autonomous Programs are only capable of producing speech based on code from a human programmer, therefore speech from AI/Autonomous Programs is merely another form of human speech. This is a more nuanced approach and arguably ensures that listeners and viewers receive all available opinions and ideas, as the law would treat autonomous bots and other forms of AI as extensions of the people who programmed them. However, the model doesn't accurately capture what's already happening with technology, as we have already seen AI speech grow beyond merely parroting the ideas and priorities of code writers. As mentioned above, the racist and anti-Semitic views espoused by Microsoft's Tay were hardly the intent of the programmers. The Dutch programmer whose Twitterbot threatened a fashion show did not intend to send that message. If we are going to create a model for addressing autonomous expression from AI and other autonomous programs under the First Amendment, making sure that the model accurately reflects what's really happening with those technologies should be a mandatory requirement.

3. Speech produced by AI/Autonomous Programs is only protected by the First Amendment when that speech represents the speech of its human programmer; speech from AI/Programs is not protected by the First Amendment otherwise. This approach attempts to address the problem in the previous model by differentiating between speech from AI and autonomous programs that is consistent with the programmers' intent and speech that is not. The problem, though, is that it relies on a fundamental question – "Is this speech representative of what the programmer would say?" – that is frequently impossible to answer. As the election last year illustrated, Twitterbots are frequently anonymous. How can a regulatory agency, state government, or court answer what the programmer thought when the programmer is anonymous? In the case of AI personal assistants, there isn't a single programmer; there are many. Is Alexa's speech only protected when it reflects Amazon's publically available statements? Do we have to compare "her" statements to the notes taken at Amazon's board meetings? This model could make regulating AI speech unmanageable.

Even when speech from AI and autonomous programs is different than what its programmers would say themselves, that's not necessarily bad. Although it has been inactive for months, during the election an AI-powered Donald Trump emulator analyzed the real Donald's Twitter production to create new tweets that he could have tweeted. The programmer, Brad Hayes, was inspired while a postdoc at MIT's Computer Science and Artificial Intelligence Lab by a training model that can simulate Shakespeare, as well as a report that analyzed Trump's "linguistic patterns to find that Trump speaks at a fourth-grade level."10 Given that Hayes has considered developing accounts for Democratic politicians, it's fair to say his Donald Trump emulator is more of an exercise than a broadcast of political opinions. But as numerous satirists would attest, just because the bot's algorithm doesn't reflect Hayes' point of view doesn't mean it doesn't deserve First Amendment protection.

4. Speech produced by AI/Autonomous Program is speech that is protected by the First Amendment. This leaves us with the final and most compelling model for applying the First Amendment to speech produced by AI and autonomous programs: a literal reading. The actual text of the First Amendment suggests this is the correct model to apply to AI/autonomous program speech, as the amendment simply states that the government "shall make no law ... abridging the freedom of speech, or of the press." If we read the amendment as it is written without reading preferences and biases into it, nothing there specifically suggests freedom of speech is limited to people. Under this interpretation, all the constitutional protections that human speech enjoys in the United States would also apply to AI and autonomous programs, whether they are Microsoft mistakes or legitimate business exercises.

As mentioned above, companies that produce AI personal assistants appear to support this model. Additionally, this model is the easiest to enforce: govern AI speech like all other speech.

Challenges to Autonomous Expression

How could autonomous expression be challenged? Historically, there are enough examples of idiosyncratic laws and ordinances designed to limit free speech that it is not hard to imagine new ones directed toward Twitterbots, AI, and other forms of autonomous technology. For example:

  • In 1913, Florida enacted a law that required newspapers to give equal space to the opponents of the candidates the papers endorsed. It was good law until the U.S. Supreme Court found it unconstitutional in 1974.11
  • In 1927, Minnesota enacted a law that permitted courts to shut down a newspaper viewed as "malicious, scandalous and defamatory." The Supreme Court found it unconstitutional in 1931.12
  • In 1932, the Los Angeles City Council passed an ordinance that criminalized the distribution of anonymous pamphlets. It was an actively enforced law until the Supreme Court found it unconstitutional in 1960.13

With regard to autonomous Twitterbots, some writers have alleged that they are not speech but are rather "speech ricochets" that "represent a form of technology that can be weaponized."14 That perspective could easily lead a city council, state legislature, or Congress to ban certain forms of autonomous speech. The state of Georgia recently passed legislation that eliminated a tax benefit in response to Atlanta-based Delta Airlines severing its ties to the National Rifle Association.15 It is not hard to imagine AI-produced statements that could also inspire governmental backlash, including banning the AI. That has to be a concern for any person or company that relies on the technology, or expects to, in the long term if autonomous speech is not treated as any other speech under the First Amendment.

Conclusion

By permitting the government to ban lawful speech, even AI speech, we introduce a great deal of uncertainty into the plans of the parties that want to use the technology and eliminate potentially useful voices. The First Amendment protects the speaker, but it also protects the rest of us, who are guaranteed the right to determine if the speaker is right, wrong, useful, useless, or a badly programmed bot. We are owed that right regardless of who is doing the speaking. Having said that, companies and individuals who are developing expressive AI should be aware of the potential dangers of autonomous speech until the certainty of First Amendment protection is assured.

Footnotes

1 Scott Shane, "The Fake Americans Russia Created to Influence the Election," New York Times, September 7, 2017, https://www.nytimes.com/2017/09/07/us/politics/russia-facebook-twitter-election.html

2 Sarah Perez, "39 million Americans now own a smart speaker, report claims," TechCrunch, January 12, 2018, https://techcrunch.com/2018/01/12/39-million-americans-now-own-a-smart-speaker-report-claims/.

3 In 2017, when police sought access to a murder suspect's Echo, Amazon filed a legal memorandum in the murder trial that seemed to assert Alexa has First Amendment rights. Amazon's motion was couched in language that referred to "Amazon's First Amendment-protected speech," but referred specifically to "Alexa's decision" about the information Alexa chooses "to include in its response," suggesting that Alexa's First Amendment rights were at stake as well. State of Arkansas v. Bates, Case No. CR-2016-370-2 (Cir. Court Benton County, Arkansas), Memorandum of Law in Support of Amazon's Motion to Quash Search Warrant, filed February 17, 2017, p. 11.

4 Hope Reese, "Why Microsoft's 'Tay' AI bot went wrong," TechCrunch, March 24, 2016, https://www.techrepublic.com/article/why-microsofts-tay-ai-bot-went-wrong/.

5 John Frank Weaver, "Who's Responsible When a Twitter Bot Sends a Threatening Tweet?", Slate, February 2015, http://www.slate.com/blogs/future_tense/2015/02/25/who_is_responsible_for_death_threats_from_a_twitter_bot.html.

6 Steve Lohr, "In Case You Wondered, a Real human Wrote This Column," New York Times, September 10, 2011, http://www.nytimes.com/2011/09/11/business/computer-generated-articles-are-gaining-traction.html?pagewanted=all&_r=0.

7 Automated Insights, Wordsmith homepage, https://automatedinsights.com/wordsmith.

8 Cade Metz, "How A.I. Is Creating Building Blocks to Reshape Music and Art," New York Times, August 14, 2017, https://www.nytimes.com/2017/08/14/arts/design/google-how-ai-creates-new-music-and-new-artists-project-magenta.html.

9 Tim Wu, "Is the First Amendment Obsolete?", Knight First Amendment Institute, September 2017, https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete.

10 "Postdoc develops Twitterbot that uses AI to sound like Donald Trump," MIT CSAIL, March 3, 2016, https://www.csail.mit.edu/news/postdoc-develops-twitterbot-uses-ai-sound-donald-trump.

11 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).

12 Near v. State of Minnesota, 283 U.S. 697 (1931).

13 Talley v. California, 362 U.S. 60 (1960).

14 Merritt Baer, "Do Russian-Backed Bots Qualify for Free Speech?", Daily Beast, October 29, 2017, https://www.thedailybeast.com/do-russian-backed-bots-qualify-for-free-speech.

15 Brooke Singman, "Georgia governor signs bills nixing Delta tax break after NRA split," Fox News, March 2, 2018, http://www.foxnews.com/politics/2018/03/02/georgia-governor-signs-bill-nixing-delta-tax-break-after-nra-split.html.

Published in Terralex Connections (May 30, 2018)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions