Four Modes of Speech Protection for Algorithms

Abstract

Computer algorithms probably deserve First Amendment protection in at least some situations. That protection, however, could take at least four forms that have little if anything to do with one another. In this book chapter I weigh in briefly on each of these modes of protection.

Courts have held that computational algorithms are in themselves a form of speech. I reject this position. Instead I argue that algorithms are simple objects that become speech only when a speaking person uses them to illustrate a point. But I also reject the contention that algorithms’ inhumanity disqualifies them from producing First Amendment-protected expression. Finally, I offer that certain types of expressive software should receive special shelters under the First Amendment not because they are speech, but because they have special roles to play in creating or fostering it.

Keywords: First Amendment, computers, technology