DOKK Library

Speech In, Speech Out

Authors James Grimmelmann

License CC-BY-4.0

                                           Speech In, Speech Out
                                               James Grimmelmann*

    On two occasions I have been asked, – “Pray, Mr. Babbage, if
    you put into the machine wrong figures, will the right answers
    come out?” … I am not able rightly to apprehend the kind of
    confusion of ideas that could provoke such a question.
                                           – Charles Babbage1
Ronald Collins and David Skover ask “whether and why First
Amendment coverage given to traditional forms of speech should be
extended to the data processed and transmitted by robots.” Their
answer is yes, because “what really matters is that the receiver
experiences robotic speech as meaningful and potentially useful or
valuable.” From this, they conclude that “utility in furthering some
lawful objective” will serve as the new “First Amendment norm.”
     The answer is right, as far as it goes, but the question is wrong,
and so Collins and Skover misunderstand how far it goes. A few
seconds’ reflection shows that sometimes robotic transmissions are
speech and sometimes they aren’t, so the proper question is not
“whether and why?” but “when?” “Robotic speech is covered if it has
utility” sounds like a statement about robots and about utility. But
really it’s a statement about speech, because in that sentence, that’s the
word doing all the work.

 My thanks for their comments to Aislinn Black and Rebecca Tushnet. This essay
may be freely reused under the terms of the Creative Commons Attribution 4.0
International license, licenses/by/4.0/.
There is a robot in my room. It has a wall-mounted control panel. If
I manipulate the controls one way, the robot activates and starts
emitting a precisely specified profile of electromagnetic radiation. If I
manipulate the controls another, the robot initiates a shutdown
sequence and cuts off the radiation.
     Does my light-bulb robot “speak?” The obvious answer is “no”:
the robot’s output is functional, not expressive. A soft white glow
expresses no intention and conveys no message.
     But of course this answer is wrong, because of course a light
source can be expressive. Two lanterns hanging in the belfry of the
Old North Church conveyed the message that the British were
coming by sea. A naval signal lamp conveys actionable orders simply
by turning off and on in Morse Code; I could easily do the same with
my light-bulb robot. My communicative intention, Collins and
Skover might say, is “delegate[d]” to the light bulb.
     It is tempting to say, then, that light bulb emissions are covered
speech. But this too is wrong, because it cuts too broadly. Congress
has effectively banned the manufacture of inefficient household
incandescent light-bulb robots, pushing most consumers like myself
to use compact fluorescent (CFL) or light-emitting diode (LED)
robots instead. There were and are serious policy debates over the
wisdom and timing of the ban. But one argument that to my
knowledge has never been seriously floated is that it amounts to a
restriction on “speech” that needs to be measured against the First
Amendment, the way that a restriction on the sale of books or Blu-
ray players would need to. Sometimes a light bulb is just a light bulb.
     Some light bulbs are used in ways that produce speech; other
light bulbs are used in ways that produce nonspeech. This is not
something intrinsic to the technology – one LED might be part of a
speech-emitting digital billboard while a physically similar one might
be part of a nonspeech-emitting pen light. Zooming out doesn’t help.

The billboard might be turned to all-white maximum brightness to
illuminate a parking lot, while the pen light might be used to flash kid
code for “Mom and Dad are asleep; let’s sneak downstairs.”
     It is not possible to distinguish speaking machines from conduct
machines on the basis of their physical instantiation. Hardware and
software are interchangeable. Almost any computer could in principle
be implemented using sticks and ropes or dams and water wheels.
Danny Hillis and Brian Silverman built a working computer out of
Tinkertoys that plays a perfect game of Tic Tac Toe.2
     Complexity isn’t the dividing line, either. A typical modern car
may have a hundred million lines of source code.3 Yes, some of that
runs the onboard entertainment system, but most of it is devoted to
boringly functional car stuff like calibrating the fuel–air mixture in
the engine. Should VW have argued that its infamous emissions-test
defeat device was protected speech?
     Perhaps you’d like to say I’m being silly. We know that when a
VW engine detects that it’s on the open road and turns off some of its
emissions controls, it’s not really “speaking.” But ask yourself this.
How do we know?
In some cases it is easy to tell whether a robot is emitting speech
because it is easy to identify a human behind the curtain. If I am
flicking my light-bulb robot on and off in Morse Code, then I have
an “intent to convey a particularized message,” in the words of Spence
v. Washington.4 No special gyrations are required to attribute speech
to the light bulb; the speech is my speech, regardless of the medium I
     Sometimes it takes a little while for it to sink in that a new
communications medium can by definition be used to convey
messages, but it always happens in the end. There is a brief confused
moment when people think that the new medium has no speech in it.

Then there is an even briefer confused moment when people think
that the new medium is all speech. And then sanity returns and we
treat the medium like any other: not determinative by itself but
relevant to understanding the content and the context of the messages
it conveys. Books can be speech, parades can be speech, movies can be
speech, video games can be speech, light bulbs can be speech, robots
can be speech. To think otherwise is to score a conceptual own goal.
      Actually, this usage is a little loose. A bound codex of sheets of
paper with ink blots on them in the shapes of letters in the Latin
alphabet arranged into English words and sentences is not “speech” if
it is being used as a doorstop or a melee weapon. It is “speech” when
it is being used as a medium of communication – to “convey a
particularized message.”5
      There is a recurring but necessary difficulty here: how can we tell
when the book or the light bulb is being used as a medium of
communication and when it is not? This is the work that the Spence
test does: it shifts our attention from the medium to the message. In
Texas v. Johnson, the medium was a flag on fire;6 in Cohen v. California,
a jacket.7 Neither case stands for the proposition that “flag speech” or
“jacket speech” is a distinct First Amendment category. Indeed, there
are Spence-test cases involving no artificial medium at all, not even a
flag or a jacket: in Erie v. Pap’s A.M.,8 a plurality of the Court held
that nude dancing was “expressive conduct” implicating the First
Amendment. Being nude with intent to communicate is different
from being nude without, just as flipping a light switch or
programming a computer with intent to communicate is different
than doing so without.
      Most of the time.
This speakers’-intent approach works for simple cases where there is
no ambiguity about who the speaker (if any) might be. The

correspondence between my intent to communicate by flashing the
light bulb and the resulting flashes is so close that it seems to follow
without question that the flashes are my speech, and therefore are
     But there are harder cases. What if I program a computer to emit
the same message repeatedly: spam? What if I program it to emit
related but distinct messages: a mail merge? What if I program it to
emit random (whatever that means) variations? What if you and I
program it together, or a hundred of us contribute code? What if you
use a program I wrote, or what if my program learns from its
interactions with millions of users or from parsing millions of existing
texts? What if? What if? What if?
     Some of these cases have easy answers; some do not. What they
share, for present purposes, is that the speaker’s-intent approach
threatens to break down because it is no longer so easy to associate a
message with the intent of a unique human author. It is this radiating
complexity that makes the category of “robotic speech” superficially
attractive – if only we could declare it all speech by treating the
program as the speaker, we could cut the Gordian knot and be home
by teatime.
     In the copyright context, I have argued that this “solution” is
chimerical.9 The problem of assigning authorship in computer-
generated works seems to repeatedly lead to suggestions that we ought
to treat them as computer-authored. It doesn’t work, because unless
and until computers are capable of being treated like people in
general, calling them “authors” deals with the complexity not at all,
by giving a completely arbitrary wrong answer. A novel written
using Microsoft Word and an animation that plays itself when the
user clicks are meaningfully different for copyright purposes: the user
is the author of the former, while the programmer is the author of the
latter. In neither case is the program the author.

     But things are not quite so bad when it comes to speech, because
copyright operates under a constraint that the First Amendment does
not. The private-rights structure of copyright law requires
identifying a copyright owner for each work, and authorship (or
something derivative of it, as with works made for hire and transfers
of title) is the only principled way of doing so. Free speech law need
not do the same: it is perfectly plausible to say that something is
protectable as speech without identifying a speaker.
     Collins and Skover get there by appealing to reader-response and
related theories in literary criticism, which emphasize a listener’s
experience of a text rather than an author’s intent. This is hardly
unprecedented in First Amendment law: there are plenty of cases in
which a listener has greater rights than a speaker with respect to the
same material (take Stanley v. Georgia’s protection for the possession
of obscenity in the home10) or has standing where a speaker is not
before the court and might not even be identifiable (take Lamont v.
Postmaster General’s protection for the American recipients of foreign
communist political propaganda11).
     Collins and Skover call this “intentionless free speech,” (or
“IFS”), and it performs well both on easy cases where a robotically
assisted human speaker can be identified and on harder cases where
the human speaker is missing. Of course lights can be speech: Paul
Revere’s riders knew what the lanterns meant. And of course robotic
utterances can be speech: people often regard the sonic waves Siri
emits as being laden with meaning. It’s a fun parlor game to try to
attribute that speech to Apple, its employees, Apple’s data sources, the
user, and the other users whose responses provided training data. But
the human user’s experience of Siri’s utterances as meaningful speech
does not depend on which humans (if any) were responsible for those
utterances. That ought to be sufficient to ground a First Amendment
interest, even if we’re not sure whose line it is, anyway. Robots speak.

      One could of course debate whether the speaker’s or listener’s
experience matters more here, or whether both do, and if so, how. I
think Collins and Skover have it right when they claim that a
listener’s experience is sufficient to ground a legally, morally, and
politically cognizable speech interest. (I would add that nothing
requires us to treat a listener’s experience of speech by itself as
presenting the same case for protection that a listener’s and speaker’s
experiences together do, but that is a matter for another time.) When
a light bulb turns on in a previously darkened room, no one present
is likely to think of it as speech. When a light bulb flickers in Morse
Code, those in the room are more likely to recognize it as speech, even
if they don’t know who is responsible for making it flicker that way.
      We have the intuitions we do about light-bulb robots because our
free-speech intuitions in general are structured by our extensive
experiences as audiences who respond to communications. Consider
Bland v. Roberts. The district court held that a Facebook like was not
protected speech, because there was no “substantive statement,” just
“one click of a button.”12 But the Fourth Circuit corrected the
mistake on appeal, writing, “In the context of a political campaign’s
Facebook page, the meaning that the user approves of the candidacy
whose page is being liked is unmistakable.”13 Where does that
meaning come from? From the community of Facebook users who
would see the like and infer the liker’s support. That’s a claim about
the social meaning of a technical practice. Reader-response gets cases
like Bland right for the right reasons.
But we still have not exhausted the types of robotic “speech.” In
addition to cases with an obvious human speaker and cases with an
obvious human listener, there are also cases in which it is not so easy
to identify a human speaker or a human listener. Collins and Skover
give an extended example involving a “robotrader” that executes an

algorithmic series of stock trades and then at the end of the day
generates a report for a human investor listing the trades and their
gains or losses.
   In such a scenario, the human investor was not a receiver of
   information during the process of trading, because the
   robotrader’s objective was to “make meaning” itself of the
   relevant data gathered to inform its buying and selling
   decisions. Nonetheless, a real First Amendment experience
   exists in this example – one that is too easily overlooked when
   focusing narrowly on the fact-based end product rather than
   more expansively on the intermediate moves that made that
   product possible.
        Even when robots or robotic components communicated
   with one another, there was still “meaningful” information
   being conveyed back and forth – all in exchanges that were set
   into motion by the human investor and that culminated in his
   or her reception of the robotrader’s report. In short, the inter-
   robotic communicative exchange worked at the behest of and
   in the service of human objectives. Assuming that the
   investor’s purposes and goals were lawful, the robo-trader’s
   exchanges of information alone made those commercial
   objectives possible. Why, then, should the intermediate stages
   in the process – the communicative steps – be viewed as any
   less deserving of First Amendment coverage?
        For IFS purposes, moreover, it does not matter whether
   the robotrader’s report was nothing but a communication of a
   collection of facts that had little or no ideological or evaluative
I have quoted this passage at length because I think it represents the
precise point at which the argument in Robotica goes wrong. The
argument, as best I can understand, seems to be that the lack of human

involvement in generating or receiving the “interrobotic
communicative exchange” is no obstacle to First Amendment
protection. Intentionless free speech excuses us from having to
identify a specific human whose intent is conveyed by these
communications. Instead, the practical reality is that such
communications will be protected as speech whenever they are “at
the behest of, and in the service of, human objectives.”
     This is the norm of utility. Collins and Skover contrast it with
the views of other First Amendment scholars who believe that
protections are reserved for speech that has “ideological or evaluative
significance.” For example, Robert Post argues in a famous essay
discussing First Amendment protection for computer source code –
crudely, speech to robots rather than speech by robots – that “First
Amendment coverage is triggered by those forms of social interaction
that realize First Amendment values.”14 Post has his own set of
preferred values,15 and other First Amendment theorists have theirs.
Collins and Skover set up the norm of utility in opposition to all such
theories. “Rather than looking up to the normative heavens, it looks
down to the streets where life and technology evolve.” Thus, they
expect equal First Amendment protection for factual, artistic, and
political speech – that is, “utility” replaces “truth” or “beauty” or
“self-governance” as the governing First Amendment norm.
Collins and Skover seem to think that the norm of utility follows
from their reader-response analysis. I am not so sure that it does. In
fact, I am quite certain that it doesn’t.
     Take the robotrader. Collins and Skover claim that the
intermediate stages in the day’s events – the information transmitted
between and within trading robots – are covered “speech,” and not
just the final report presented to the human trader. But while the
intermediate transmissions were “at the behest of, and in the service

of, human objectives,” the only thing experienced by a human as
speech was the final report. A listener-oriented reader-response
approach can find meaning in the final report, but it has less to say
about the intermediate steps. No human was present for them; no
human extracted meaning from them. The user who set the algorithm
in motion and who received the report likely has no idea how the
robo-traders work or what they “said.”
     Intentionless free speech is a listener-oriented theory: it grounds
protections in listeners’ experiences rather than in speakers’
intentions. But it is not a human-free theory: without a human
somewhere in the loop, there is no cognizable First Amendment
interest to assert, because no one’s rights have been infringed. (As in
copyright, the day when robots can qualify in their own right as legal
persons protected by the Bill of Rights is still a long way off.)
     Suppose there was no report at the end of the day, so that no
information was presented to a human at all, and no human had an
experience of meaning. Collins and Skover’s argument would still go
through. The trades were “at the behest of, and in the service of,
human objectives.” This should be a sign: the argument doesn’t
actually depend on readers’ responses to anything. The norm of
utility is not really a free speech theory.
The norm of utility cannot function as what Frederick Schauer calls a
Free Speech Principle: a way of deciding what kinds of claims are
“speech” claims entitled to special weight and what kinds of claims
are not.16 Schauer’s point, which is profound, is that without some
kind of Free Speech Principle, specific free speech arguments collapse
into general liberty arguments. Utility is a norm and a virtue, to be
sure. But it is not a free speech norm or a free speech virtue.
     This isn’t just a theoretical issue; it’s a deeply practical one. My
light-bulb robot is useful: it helps me see my dresser well enough to

put on matching socks in the morning. The ban on inefficient
residential incandescent bulbs is, by the norm of utility, a restriction
on speech. It is probably a content-neutral restriction, although
perhaps a manufacturer could argue that it is content based given the
different wavelength output profiles of incandescent, CFL, and LED
bulbs. Energy efficiency is a substantial governmental interest that is
probably unrelated to the suppression of speech, but is the restriction
greater than necessary? That depends on the costs and availability of
CFL and LED illumination robots … and down the rabbit hole we
     If utility is the “First Amendment lodestar,” then speech eats the
world, because anything some human cares enough to do is useful, at
least to them. Some physicists, and some mystics, think that the entire
universe is literally made up of information. The idea is that what we
perceive as matter and forces and everything else is merely the flow
and transformation of information from one place and one form to
another. The universe, on this view, is a gigantic computer,
constantly churning through the computation of a function of cosmic
and unbelievable complexity. Something like this is true of Collins
and Skover’s conception of speech in the age of robots. Speech is
everywhere and everything; it waits only for humans to come along
and find it useful.
     That would make the First Amendment into “the New
Lochner,” to use Amanda Shanor’s term: a broad and deep
prohibition on government regulation of a wide range of activity.17
That might or might not be a good thing, but it is not meaningfully
tethered to anything we would recognize or care about as “speech.”
The argument for maximal liberty has to be made on its own terms,
in light of human experience and purposes. It can’t be made by
invoking an age-old progressive free speech tradition (as Collins and
Skover do in the first third of Robotica), because that tradition as a

speech tradition doesn’t get us there. If everything is speech, then
nothing is.
The crux of the contradiction is the relationship between
communicative meaning and First Amendment coverage. The Spence
test is deceptively simple: when a speaker’s “intent to convey a
particularized message” and listeners’ “likelihood … that the message
would be understood”18 coincide, the First Amendment kicks in. On
this view, communicative meaning is a necessary and sufficient
condition of First Amendment coverage: if humans intend and
experience it as speech, it’s “speech” for First Amendment purposes.
(We have already discussed the question of whether the speaker’s
intent is strictly necessary. Collins and Skover argue – I think
correctly – that in cases of robotic speech the answer is “no,” and
listeners’ understanding suffices.)
     Some scholars accept this view that the First Amendment reaches
to the full extent of communicative meaning. Back in 2000, Lee Tien
gave a sophisticated account of it in terms of speech-act theory as part
of a sustained argument for First Amendment protection for source
code.19 More recently, Stuart Benjamin gave a detailed working out
of its consequences for robots.20 And I take this to be an important
premise of Jane Bambauer’s argument that the collection and sharing
of “data” is subject to First Amendment coverage.21
     Other scholars disagree and think that the First Amendment
reaches only a subset of communicative meaning. When Tim Wu says
that courts “limit coverage in a way that reserves the power of the
state to regulate the functional aspects of the communication
process,”22 he is not saying that a self-driving car’s left-turn signal
communicates nothing and has no meaning. The human or robotic
driver of the car behind knows exactly what it means: “The car ahead
is about to turn left.” But that signal is so closely connected to the

activity of safe driving that failure-to-signal laws are not regarded as
restrictions on speech. Driving has great utility – but that still doesn’t
provide a compelling reason to treat the turn signal as First
Amendment “speech.” In various ways, at various times, and for
various reasons, criminal conspiracies, threats, navigational charts,
violent conduct, price fixing, and obscenity have all been so classified,
despite possessing what any competent reader or listener would
regard as communicative meaning.
     The norm of utility blows past the limits of this debate: it finds
First Amendment coverage even in cases where there is no
communicative meaning. I do not read Tien, Benjamin, Bambauer –
or anyone else, except perhaps John Perry Barlow – to go so far as to
say, “It’s all speech now, whether you knew it or not. As long as it’s
useful, it’s speech.” Not just the turn signal, but the wiring from the
self-driving car’s onboard computer to the turn signal, its laser and
GPS unit, and the formulation of the rubber in its tires: they’re all
useful, they’re all speech.
     It is true that some activities that are never directly experienced
by a human – including ones that no human is capable of experiencing
– possess communicative meaning and are treated as “speech.” We
have no sense organs capable of detecting FM radio waves; our brains
cannot easily decode the bits in a Microsoft Word file being emailed
from one computer to another. And yet these are unquestionably
“speech” for First Amendment purposes. These activities are “speech”
because of their close nexus to other activities that do involve
communicative meaning. For better or worse, different theories of
the First Amendment do the work of explaining what kinds of nexus
count and what kinds do not. The norm of utility does not and
cannot, because it is completely untethered from the human
experiences that distinguish speech from nonspeech in the first place.

What has gone wrong here is that Collins and Skover’s incorrect
framing of the question of robotic speech – as “whether?” rather than
“when?” – has led them to draw the wrong conclusions from their
otherwise insightful analysis of how listeners experience the world.
Reader-response is a good answer to the fact-laden question of when
humans make meaning from their interactions with robots, but it is a
poor answer to the categorical question of whether robotic speech
requires a new First Amendment norm. Looking to the receiver’s
experience correctly distinguishes speech from nonspeech in many
cases involving robots. It does not follow that utility is the new “First
Amendment lodestar,” because while utility is sensitive to what
makes speech valuable, it is entirely indifferent to what makes speech

  Charles Babbage, Passages from the Life of a Philosopher (London,
England: Longman, Green, Longman, Roberts, and Green, 1864), p.
  See A. K. Dewdney, “A Tinkertoy Computer That Plays Tic-Tac-
Toe,” Scientific American, October 1989, p. 120.
  See Nicole Perlroth, “Why Automakers Are Hiring Security
Experts,” New York Times, 7 June 2017, sec. B, p. 4.
  Spence v. Washington, 418 U.S. 405, 410–11 (1974).
  Lee Tien, “Publishing Software as a Speech Act,” Berkeley
Technology Law Journal 15: 629 (2000).
  Texas v. Johnson, 491 U.S. 397 (1989).
  Cohen v. California, 403 U.S. 15 (1971).
  Erie v. Pap’s A.M., 529 U.S. 277 (2000).
  James Grimmelmann, “There’s No Such Thing as a Computer-
Authored Work, and It’s a Good Thing, Too,” Columbia Journal of
Law & the Arts 39: 403 (2016).
   Stanley v. Georgia, 394 U.S. 557 (1969).
   Lamont v. Postmaster General, 381 U.S. 301 (1965).
   857 F. Supp. 2d 599 (E.D. Va. 2012).
   730 F.3d 368 (4th Cir. 2013).
   Robert Post, “Encryption Source Code and the First
Amendment,” Berkeley Technology Law Journal 15: 713 (2000).
   See, e.g., Robert Post, “Recuperating First Amendment
Doctrine,” Stanford Law Review 47: 1249 (1995).
   Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge:
Cambridge University Press, 1982), pp. 6–7.
   Amanda Shanor, “The New Lochner,” Wisconsin Law Review
2016: 133 (2016).
   Spence v. Washington, 418 U.S. 405, 410–11 (1974).
   Tien, “Publishing Software as a Speech Act.”

   Stuart Minor Benjamin, “Algorithms and Speech,” University of
Pennsylvania Law Review 161: 1445 (2013).
   Jane Bambauer, “Is Data Speech?,” Stanford Law Review 66: 57
   Tim Wu, “Machine Speech,” University of Pennsylvania Law Review
161: 1495, 1496–97 (2013).