Oct. 13, Jared Schroeder, J-School, in Austin American-Statesman for https://www.statesman.com/opinion/Austin American-Statesman/commentary-maybe-bots-are-bad-guys—but-first-convince-courts
What happens in California doesn’t always stay in California, and that’s why Texans tracking the disruption of bots and other non-humans ought to be concerned that California Gov. Jerry Brown signed a law last week that criminalizes using unlabeled bots for political gain. The law is also almost certainly unconstitutional. Yes, the law addresses a problem regarding the influence of AI (artificial intelligence) actors and the misleading information they often carry. Yes, the law is worded to avoid halting all AI expression; it merely requires that AI disclose that they are bots.
The First Amendment problem, however, hinges on how we classify AI communicators: Are they more like cats or corporations? The courts have done little to address free expression rights for AI entities. They have considered two other types of non-human actors: animals and corporations. Judges have consistently ruled that animals do not have the same rights as humans. This was most recently restated in the “monkey selfie” case. The court ruled that the monkey could not make a copyright claim because he was not a person. Similarly, a court rejected a cat owner’s claim that being required to buy a business permit for their feline’s performances violated their rights. Blackie the Cat was trained to say “I love you” when his owners squeezed his paw. The judges were not persuaded by the argument that Blackie the Cat had free expression rights. Unlike cats and monkeys, corporations have been successful in receiving the same rights as humans. The Supreme Court started to expand freedom of expression rights to corporations in the 1970s. Justices did so for one reason – corporations can contribute to public discussion. In First National Bank v. Bellotti, the Court emphasized that the First Amendment was created to protect discussion of government affairs. The Court was more emphatic in Citizens United v. United States in 2010.
The Court emphasized, “Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” The decision also highlights that speakers, human or not, cannot be treated differently based on their nature. So, what is the difference between cats and corporations? The key appears to be the non-human actors’ ability to contribute to discussion. Blackie the Cat could communicate, but only what he was trained to say. Corporations are collections of humans and are capable of contributing important ideas to discussion. We have to decide, legally, if AI communicators are more like cats or corporations. Some bots merely spread information, such as those that automatically retweet messages or spread links. Others gather and create information and place it in original formats that contribute to society. The Every Trump Donor bot, which gathered information about the names, hometowns, occupations, and amounts given and wrote the facts into tweets provided a service to discussion. Similarly, news organizations use bots to cover events, including elections. These entities create original content that compares more with the Supreme Court’s rationales in corporate speech cases. Finally, the cats-or-corporations dichotomy comes into play with the anonymity aspect of the law. California’s law requires bots that engage in election advocacy be labeled. If we classify these bots as being like animals, then this is not problematic.
If they are understood more like the Supreme Court has understood corporations, they should have a right to retain anonymity. In McIntyre v. Ohio Elections Commission, the Court reinforced the right of political communicators to remain anonymous. “Anonymity is a shield from the tyranny of the majority,” Justice John Paul Stevens wrote for the Court. “Political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.” California’s bot law addresses an important societal problem, but fails to do so in a nuanced fashion. At least some AI communicators contribute to political discourse and will find protection within corporate-speech cases – no matter what Blackie the Cat says. Jared Schroeder is an assistant professor of journalism at Southern Methodist University, where he specializes in First Amendment law.