Minimum Human Effort and New Speech Creation Technologies: Protecting Conduct and Content | American Business Institute
The First Amendment to the U.S. Constitution safeguards “freedom of speech” from government censorship. But does it protect – and should it protect – speech created by modern technological tools that involve minimal human effort, such as simply pressing a digital button or entering a brief query? In other words, no Minimum mortal effort to generate significant (for some) constitutional coverage of expression for such technology-derived production?
Answering these questions is vital because new technologies––tools generating artificial intelligence––reduce the amount of mental and physical human effort required to produce expression. The problem, however, predates generative AI.
In 2012, a federal district court in Virginia found in Bland v. “that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” Judge Raymond A. Jackson argued that “[s]involves liking a Facebook page. . . is not the kind of substantive statement that previously deserved constitutional protection.” The case involved a sheriff’s employee who claimed he was retaliated against after liking a post from a rival candidate running for sheriff.
The U.S. Court of Appeals for the Fourth Circuit, however, reversed that ruling in 2013. It noted that “clicking the ‘like’ button literally causes a statement to be published that the user ‘likes’ something, which is in itself a substantive statement.” Critically, the minuscule effort of producing the thumbs-up symbol was irrelevant to the Fourth Circuit: “That a user can use a single mouse click to produce the message that he or she liked the page, rather than typing the same message with multiple Individual keystrokes have no constitutional significance.”
Courts have faced a similar issue when it comes to using smartphone technology to capture videos of police officers doing their jobs in public places. Is the rudimentary conduct of pressing a record button to create a video recording protected by the First Amendment? The U.S. Court of Appeals for the Seventh Circuit addressed this issue in 2012 in American Civil Liberties Union of Illinois v. Alvarez. It determined that “[t]he acts like doing An audio or audiovisual recording is necessarily included in the First Amendment guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the preceding act of making the recording was completely unprotected.” (emphasis in original).
This logic may seem like common sense, but other courts have disagreed. Namely, a 2016 Pennsylvania federal district court in Fields v. City of Philadelphia considered “photographing or filming police on our handheld devices without challenging the police is expressive conduct protected by the First Amendment.” Judge Mark A. Kearney concluded that the act of silently recording police officers without criticizing them did not amount to expressive conduct and therefore did not deserve constitutional protection. In short, “observe” and “record” without confrontation” did not amount to protected speech.
The U.S. Court of Appeals for the Third Circuit, however, reversed Kearney’s decision in 2017. It strongly held that “the First Amendment protects the act of photographing, filming, or otherwise recording police officers performing their official duties in public”. He reasoned that “[t]The First Amendment protects real photos, videos, and recordings. . . and for this protection to be meaningful, the Amendment must also protect the act of creating that material.” In 2022, the Tenth Circuit affirmed this principle, concluding that “video recording is ‘unequivocal’ creation of speech, not mere conduct.”
The value of content generated by insignificant human effort in Bland v. (the Facebook like case) and police recording cases explains why First Amendment protection is essential to the act of creating it. Brandon it involved a central political expression (supporting a candidate for public office) that affected democratic self-governance (voting wise decisions, as Alexander Meiklejohn would say). The act of liking also serves the First Amendment value of “individual self-actualization” by allowing a person to identify as a supporter of a candidate. Recording police officers, in turn, can expose “police abuse of authority” while at the same time protecting them from false and malicious allegations of wrongdoing.
Should the First Amendment protect the original output created by generative AI in response to nominal human efforts in inputting prompts? Scholars Eugene Volokh, Mark Lemley, and Peter Henderson answer “yes” in a 2023 paper. Generative AI, they argue, is simply “a special case of the proposition that the First Amendment protects technologies that make it easier to speak.” Not only does it help users speak (e.g., composing letters), it also affects the First Amendment’s “interests of listeners in receiving meaningful communication” about important issues. Both the right to speak through generative AI and the right to receive speech justify protecting the creation and production of speech.
In short, minimal effort in creating speech through new technologies should not undermine constitutional protection.
