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UC Law Constitutional Quarterly

Hilda Kajbaf

Abstract

Our contemporary conversations with chatbots raise a constitutional question not previously considered: is the speech produced by chatbots constitutionally protected? If so, whose speech is the Constitution protecting—that of the chatbot or the human who programmed it with algorithms? If the Supreme Court recognizes the human programmer as the speaker of chatbot speech, as this Note contends it should, what are the potential liabilities the programmer could face as a result of such recognition, and how would this change the doctrinal landscape of the First Amendment for government regulation of speech? This Note proceeds in five parts. Section I defines “chatbot” and discusses its evolving capabilities and limitations. Section II delves into three theories that the Supreme Court has used to interpret freedom of speech issues, specifically, the marketplace of ideas, the reader-response criticism, and the chilling effect. This section provides a philosophical perspective on the Free Speech Clause to identify overlapping themes present in traditional speech and chatbot speech. Section III analyzes the United States Supreme Court’s Opinion in Brown v. Entertainment Merchants Association, and the United States District Court for the Southern District of New York’s opinion in Jian Zhang v. Baidu.com Inc. to present a standard under which federal courts could recognize chatbot speech as constitutionally protected speech. Section IV considers the Supreme Court’s controversial opinion in Citizens United v. Federal Election Commission to illustrate the Court’s willingness to afford Free Speech Rights to non-humans, and to demonstrate that existing precedent could be adapted to include chatbot speech. Lastly, Section V explains the constitutional implications and outlines the potential dangers of extending free speech protection for society.

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