Do you lose free speech rights if you speak using a computer?

It took guts for the New York Times to publish an op-ed by Tim Wu, the Columbia law professor who coined the phrase "network neutrality," arguing that the First Amendment doesn't protect the contents of the New York Times website. A significant amount of the content on the Times websitestock tickers, the "most e-mailed" list, various interactive featureswere generated not by human beings, but by computer programs. And, Wu argues, that has constitutional implications:

Protecting a computers "speech" is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship. The First Amendment has wandered far from its purposes when it is recruited to protect commercial automatons from regulatory scrutiny.

OK, I fibbed. The target of Wu's op-ed was Google and Facebook, not the New York Times. But accepting Wu's audacious claim that computer-generated content doesn't deserve First Amendment protection endangers the free speech rights not only of the tech titans, but of every modern media outlet.

No one believes that the output of computer programs, as such, are protected by the First Amendment. It would be ridiculous, for example, to argue that the First Amendment barred the government from regulating a computer that controlled a nuclear power plant. But when a firm is in the business of providing information to the public, that information enjoys First Amendment protection regardless of whether the firm creates the information "by hand," or using a computer.

Wu's argument depends on drawing a sharp distinction between constitutionally protected human speech and computer speech that is unprotected by the First Amendment. But closer examination demonstrates how nonsensical this distinction is. To make the point, we don't need to look any further than the grey lady herself.

Articles published by the New York Times are often composed using word processors, and pages in the print newspaper are laid out using page layout software. The nytimes.com website is sent to readers by a Web server (a computer program) and rendered by a Web browser (also a computer program).

Of course, Wu isn't talking about those programs. He means programs that are directly involved in the production or selection of content. But the New York Times website has plenty of examples of those too. The home page features an automated stock ticker. A box on the right-hand side of the page shows "most e-mailed" and "recommended for you" storiesalso generated automatically. The millions of ads the Times shows its readers every month are almost certainly chosen by computer algorithms.

In 2010, the Times produced an interactive feature called "You Fix the Budget." Users were invited to try to balance the US federal budget by choosing a mix of spending cuts and tax increases. A January feature, called "What Percent Are You?," invited readers to enter their household income in order to see how it compares with others in hundreds of metropolitan areas around the country. Features like this would be impossible to create "by hand."

On election night, the Times typically has an extensive section of its website featuring election results from around the country, complete with maps, charts, and poll results. These features are updated in real time, far too quickly for a human staff to keep them up to date.

The Times employs Nate Silver, a statistician who collects thousands of poll results and produces sophisticated mathematical models of election outcomes. These models are complex enough that his results could only be generated by a computer, and indeed even Silver himself can't always explain exactly why the model produces a particular outcome.

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Do you lose free speech rights if you speak using a computer?