It took guts for the New York Times to publish an op-ed by Tim Wu, the Columbia law professor who coined the phrase “network neutrality,” arguing that the First Amendment doesn’t protect the contents of the New York Times website. A significant amount of the content on the Times website—stock tickers, the “most e-mailed” list, various interactive features—were generated not by human beings, but by computer programs. And, Wu argues, that has constitutional implications:
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.
OK, I fibbed. The target of Wu’s op-ed was Google and Facebook, not the New York Times. But accepting Wu’s audacious claim that computer-generated content doesn’t deserve First Amendment protection endangers the free speech rights not only of the tech titans, but of every modern media outlet.
No one believes that the output of computer programs, as such, are protected by the First Amendment. It would be ridiculous, for example, to argue that the First Amendment barred the government from regulating a computer that controlled a nuclear power plant. But when a firm is in the business of providing information to the public, that information enjoys First Amendment protection regardless of whether the firm creates the information “by hand,” or using a computer.
“Computer speech” at the New York Times
Wu’s argument depends on drawing a sharp distinction between constitutionally protected human speech and computer speech that is unprotected by the First Amendment. But closer examination demonstrates how nonsensical this distinction is. To make the point, we don’t need to look any further than the grey lady herself.
Articles published by the New York Times are often composed using word processors, and pages in the print newspaper are laid out using page layout software. The nytimes.com website is sent to readers by a Web server (a computer program) and rendered by a Web browser (also a computer program).