Do computers have free speech rights?

A provocative piece from the NYT. There is a move afoot to say that they do, and that the results of searches, on Google for example, are speech and should be protected in the same sense that any act of speech is.  

The argument that machines speak was first made in the context of Internet search. In 2003, in a civil suit brought by a firm dissatisfied with the ranking of Google’s search results, Google asserted that its search results were constitutionally protected speech. (In an unpublished opinion, the court ruled in Google’s favor.) And this year, facing increasing federal scrutiny, Google commissioned Eugene Volokh, a law professor at the University of California, Los Angeles, to draft a much broader and more elaborate version of the same argument. As Professor Volokh declares in his paper: “Google, Microsoft’s Bing, Yahoo! Search, and other search engines are speakers.”

[See a related article here.]

To a non-lawyer the position may sound bizarre, but here is the logic. Take a newspaper advice columnist like Ann Landers: surely her answers to readers’ questions were a form of speech. Likewise, when you turn to Google with a question, the search engine must decide, at that moment, what “answers” to give, and in what order to put those answers. If such answers are speech, then any government efforts to regulate Google, like any efforts to bowdlerize Ann Landers, must be examined as censorship.

But the authors balks at the idea that a non-organic entity - a creature created by an algorithm developed by a corporation - should have the same speech rights as an actual person:

Is there a compelling argument that computerized decisions should be considered speech? As a matter of legal logic, there is some similarity among Google, Ann Landers, Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship. The First Amendment has wandered far from its purposes when it is recruited to protect commercial automatons from regulatory scrutiny.

It is true that the First Amendment has been stretched to protect commercial speech (like advertisements) as well as, more controversially, political expenditures made by corporations. But commercial speech has always been granted limited protection. And while the issue of corporate speech is debatable, campaign expenditures are at least a part of the political system, the core concern of the First Amendment.

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.