The First Amendment Does Not Protect Replicants
Lawrence Lessig · 2022
Abstract Imagine a platform with technology that would automatically craft content, the substance of which would be determined algorithmically, within broad constraints set by people. Should such speech, labeled in this essay as “replicant speech,” be regulable? Replicants, as defined in this essay, are processes that have developed a capacity to make semantic and intentional choices, the particulars of which are not plausibly ascribed to any human or team of humans in advance of those choices. Humans may build the systems, but humans do not make or directly control the decisions that those systems manifest. The essay argues that, for several reasons, such technology does not deserve the full protections of the First Amendment. If it is the dignity of democratic citizenship that the First Amendment is protecting, there is nothing in the replicant’s algorithms that deserves any such dignity. Nothing in our Constitution should be read to require us to remain vulnerable to the dangers from replicants. To the contrary, everything in our Constitution should direct us to protect against their harmful effect.