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ABSTRACT
Artificially intelligent communicators are increasingly influencing human discourse. Algorithms and bots are determining the range and frequency of ideas individuals encounter, ultimately raising questions about whether the marketplace of ideas theory of the First Amendment, as it has traditionally been envisioned by the Supreme Court, can continue to endure as justices’ dominant tool for rationalizing extensive safeguards for free expression. In particular, the emergence of AI actors, which drown out human ideas and spread false and misleading information, appear to only worsen the long-standing criticisms of the theory’s assumptions. This article draws from Hannah Arendt’s political philosophy to construct a revised approach to marketplace theory as it enters its second century of use by the Supreme Court. Arendt’s ideas, especially as they pertain to the power of human-made machines to condition human behavior, as well as her concerns regarding community, truth, and the dichotomy between animal laborans and homo faber, are uniquely suited, as well as relatively under considered, when it comes to revising the marketplace approach.
Notes
1. Arendt, The Human Condition, 147.
2. Papacharissi, “A Networked Self Identity Performance, 209; Turkle, Alone Together, 11; Sunstein, #Republic, 41–8.
3. Arendt, The Human Condition, 7–11. See also Bradshaw, Acting and Thinking, 9–12.
4. Noble, Algorithms of Oppression, 1–3; Mittelstadt et al., “The Ethics of Algorithms,” 1–2.
5. Noble, Algorithms of Oppression,1. Umoja Noble’s primary concern was race-based biases within algorithms.
6. Higgins, “Twitter Bots Were More Active,” CNBC, February 4, 2019, https://www.cnbc.com/2019/02/04/twitter-bots-were-more-active-than-previously-known-during-2018-midterms-study.html; Korecki, “‘Sustained and Ongoing’, ” Politico, February 20, 2019, https://www.politico.com/story/2019/02/20/2020-candidates-social-media-attack-1176018; Wile, “Talking to an Airport?,” Miami Herald, February 14, 2019, https://www.miamiherald.com/news/business/article226162940.html.
7. Gorodnichenko, Pham, and Talavera, “Social Media, Sentiment and Public Opinions,” National Bureau of Economic Research, May 2018, Working Paper 24,631, https://www.nber.org/papers/w24631.pdf; McKew, “How Twitter Bots and Trump Fans Made #ReleasetheMemo Go Viral,” Politico Magazine, February 4, 2018, https://www.politico.com/magazine/story/2018/02/04/trump-twitter-russians-release-the-memo-216935.
8. Picdescbot, About This Bot, Tumblr, https://picdescbot.tumblr.com/about (last accessed February 21, 2019). See also political bots that create original content, all of which are no longer active: Every Trump Donor (@EveryTrumpDonor), (https://twitter.com/EveryTrumpDonor; Every Trump-ette (@everytrumpette), https://twitter.com/everytrumpette; Erowid Sarah Palin (@SarowidPalinUSA), https://twitter.com/SarowidPalinUSA.
9. Schauer, Free Speech, 15; Baker, Human Liberty and Freedom of Speech, 3–5; Bunker, Critiquing Free Speech, 2; and Wat Hopkins, “The Supreme Court Defines the Marketplace of Ideas,” 40–41.
10. Higgins, “Twitter Bots Were More Active.”
11. Ibid.
12. See Himelboim, McCreery, and Smith, “Birds of a Feather Tweet Together,” 166–1, for networked analysis of the problem. See also Sunstein, #Republic, 44.
13. Schauer, Free Speech, 15–16; Ingber, “The Marketplace of Ideas,” 3; and Napoli, “The Marketplace of Ideas Metaphor,” 153.
14. Ibid.
15. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
16. Web 1.0 was characterized by massive information availability. Web 2.0 included social media and the creation of user-generated content. Web 3.0 involved increasingly interwoven relationships between information and knowledge. See Nupur, “World Wide Web and its Journey from Web 1.0 to Web 4.0,” 8099; Aghaei, Sareh, Nematbakhsh, and Farsani, “Evolution of the World Wide Web: From Web 1.0 to Web 4.0,” 1.
17. Bradshaw, Acting and Thinking, 3; and Parekh, Hannah Arendt and the Search for a New Political Philosophy, ix–xii.
18. Artificial Intelligence, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/artificial-intelligence/#HistAI, last visited January 25, 2018).
19. Balkin, “The Path of Robotics Law,” 51; Calo, “Robots in American Law,” University of Washington School of Law Research Paper No. 2016–04, February 24, 2016, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2737598.
20. Gorodnichenko, Pham, and Talavera, “Social Media, Sentiment and Public Opinions.”
21. Fowler and Charlotte Goodman, “How Tinder Could Take Back the White House,” New York Times, June 22, 2017, https://www.nytimes.com/2017/06/22/opinion/how-tinder-could-take-back-the-white-house.html?_r=0; Gorwa and Guilbeault, “Tinder Nightmares: The Promise and Peril of Political Bots,” Wired, July 7, 2017, http://www.wired.co.uk/article/tinder-political-bots-jeremy-corbyn-labour.
22. Volz, “U.S. Far-Right Activists, WikiLeaks and Bots Help Amplify Macron Leaks,” Reuters, May 6, 2017, https://www.reuters.com/article/us-france-election-cyber-idUSKBN1820QO.
23. Frenkel and Wakabayashi, “After Florida School Shooting, Russia ‘Bot’ Army Pounced,” New York Times, February 19, 2018, https://www.nytimes.com/2018/02/19/technology/russian-bots-school-shooting.html.
24. Carroll, “Russian Twitter Trolls Sent More Than 12,000 Tweets About NFL, National Anthem,” Sports Illustrated, October 22, 2018, https://www.si.com/nfl/2018/10/22/russian-twitter-trolls-nfl-national-anthem-protests-bots; McKew, “How Twitter Bots and Trump Fans Made #ReleasetheMemo Go Viral.”
25. Stewart, “Twitter’s Wiping Tens of Millions of Accounts from its Platform,” Vox, July 11, 2018), https://www.vox.com/2018/7/11/17561610/trump-fake-twitter-followers-bot-accounts; Sarah Midkiff, “Will You Be Impacted by This Latest Instagram Update?,” Refinery29, November 19, 2018, https://www.refinery29.com/en-us/2018/11/217339/instagram-purge-fake-followers-accounts-remove.
26. Gleick, “Bot or Not?” New York Review of Books, March 11, 2015, https://www.nybooks.com/daily/2015/03/11/twitter-bot-or-not/.
27. Jaskot, “Introducing Lucia: A Chatbot for Asylum Seekers,” Medium (December 12, 2018), https://chatbotslife.com/introducing-lucia-a-chatbot-for-asylum-seekers-28f7bb01a418; and Lapowsky, “Here’s How Much Bots Drive Conversation During News Events,” Wired, October 30, 2018), https://www.wired.com/story/new-tool-shows-how-bots-drive-conversation-for-news-events/.
28. Sillers, “Robots, Chatbots and Augmented Reality,” The Independent, September 24, 2017, https://www.independent.co.uk/travel/news-and-advice/future-travel-airport-technology-hi-tech-chatbots-robots-augmented-reality-ai-a7961171.html.
29. Arendt, The Human Condition, 152.
30. Schwartz, “Conservative Outlets Take on Facebook,” Politico, March 29, 2018, https://www.politico.com/story/2018/03/29/conservatives-facebook-liberal-bias-490920; and Carr, “Hundreds of Thousands of Women March in Protest Against Trump: Facebook News Tries to Silence Them All,” Pando, January 21, 2017, https://pando.com/2017/01/21/hundreds-thousands-women-march-protest-facebook-news-feed-tries-silence-them-all/.
31. Vaidhyanathan, “Why Conservatives Allege Big Tech is Muzzling Them,” The Atlantic (July 28, 2019), https://www.theatlantic.com/ideas/archive/2019/07/conservatives-pretend-big-tech-biased-against-them/594916/.
32. Noble, Algorithms of Oppression, 24–5.
33. Van Dijck, The Culture of Connectivity, 31.
34. Search King v. Oklahoma, 2003 U.S. Dist. LEXIS 27193 (W.D. Okla. 2003); Langdon v. Google, 474 F. Supp. 2d 622 (D. Del. 2007).
35. Ibid.
36. Search King, 2003 U.S. Dist. LEXIS 27193 at 11–12.
37. Wat Hopkins, “The Supreme Court Defines the Marketplace of Ideas,” 40–41. See also, Bigelow v. Virginia, 421U.S. 809, 826 (1975); Gertz v. Robert Welch, Inc., 418U.S. 323, 339–40 (1974); and Miller v. California, 413 U.S. 15, 36 (1973).
38. Hopkins, “The Supreme Court Defines the Marketplace of Ideas,” 43; Baker, Human Liberty and Freedom of Speech, 3–7; and Schauer, Free Speech: A Philosophical Enquiry, 15–7.
39. Hopkins, “The Supreme Court Defines the Marketplace of Ideas,” 40.
40. See note 15 above.
41. Ibid.
42. Justice Holmes referred to truth as a “mirage” and as being conditional and changing. He rejected the idea that anyone could grasp absolute truth. See, Holmes, “Natural Law,” 40; Letter from Justice Oliver Wendell Holmes to Harold Laski, professor at the London School of Economics (January 11, 1929) (included in The Essential Holmes, Richard A. Posner, ed., 1992), 107; Letter from Justice Oliver Wendell Holmes to Patrick Sheehan, Irish Catholic priest (October 18, 1912) (included in The Essential Holmes (Richard A. Posner, ed., 1992, 7).
43. The Essential Holmes, 107.
44. Ibid., 40–1.
45. Ibid.
46. See Dickerson, “Freedom of Expression and Cultural Meaning,” 368; Ingber, “The Marketplace of Ideas,” 3–6; and Napoli, “The Marketplace of Ideas Metaphor in Communications Regulation,” 153–4.
47. Gaus, Contemporary Theories of Liberalism, 2–3; Siebert, “The Libertarian Theory of the Press,” 40–1; and Baker, Human Liberty & Freedom of Speech, 6–7.
48. 395U.S. 367, 390 (1969).
49. 447U.S. 557, 592 (1980) (Rehnquist, J., dissenting).
50. Ibid.
51. First National Bank v. Bellotti, 435 U.S. 765, 810 (1978) (White, J., dissenting).
52. Schroeder, “Marketplace Theory in the Age of AI Communicators,” 52–60.
53. Gertz v. Welch, 418 U.S. 323, 339–40 (1974).
54. 345 U.S. 41, 56 (1953) (quoting Grosjean v. American Press Co., 297 U.S. 233, 247 (1936)).
55. Milton, “Areopagitica and Of Education,” 50.
56. See Barron, “Access to the Press: A New First Amendment Right,” 1641; Baker, Human Liberty & Freedom of Speech, 3–12; and Blasi, “The Checking Value in First Amendment Theory,” 549, for examples.
57. Hollinger, “The Enlightenment and the Geneology of Cultural Conflict in the United States” in What’s Left of the Enlightenment, eds. Keith Michael Baker & Peter Hanns Reill, Stanford, CA.: Stanford University Press, 2001), 8–9.
58. Ibid., 9.
59. Arendt, The Human Condition, 290.
60. Ibid., 167.
61. Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557, 592 (1980) (Rehnquist, J., dissenting).
62. Barron, “Access to the Press: A New First Amendment Right,”1641.
63. Baker, Human Liberty & Freedom of Speech, 12.
64. Ibid., 3.
65. Ibid., 12.
66. Ibid., 23–4.
67. Ibid., 24.
68. Ibid.
69. Baker, “Realizing Self-Realization,” 652.
70. Ibid.
71. Ingber, The Marketplace of Ideas, 7–8.
72. Ibid., 15.
73. Ibid.
74. Blasi, “The Checking Value in First Amendment Theory,” 549.
75. Schauer, “The Role of the People in First Amendment Theory,” 776–7.
76. Ibid., 776–77; and Ingber, The Marketplace of Ideas: A Legitimizing Myth, 15.
77. Nyhan and Reifler, “When Corrections Fail,” 328–9. See also, Swire, Berinsky, Lewandowsky, and Ecker, “Processing Political Misinformation: Comprehending the Trump Phenomenon,” 16–8.
78. Balmas, “When Fake News Becomes Real,” 446.
79. Ingber, “The Marketplace of Ideas,” 15.
80. Ibid., 24–5.
81. Schroeder, “Shifting the Metaphor,” 426–30.
82. Pitkin, The Attack of the Blob, 1–3; Parekh, Hannah Arendt and the Search for a New Political Philosophy, ix–xiii; and Villa, The Cambridge Companion to Hannah Arendt, 1–2.
83. May, Hannah Arendt, 14–5.
84. For Arendt’s own description, see Arendt, “The Jew as Pariah,” 108–10. See also May, Hannah Arendt, 14–6 and Pitkin, The Attack of the Blob, 19–24.
85. May, Hannah Arendt, 40–1.
86. Arendt, Origins of Totalitarianism, 267.
87. Ibid., 279.
88. May, Hannah Arendt, 49–50.
89. Arendt, The Human Condition, 14–15.
90. Arendt, Eichmann in Jerusalem, 24–26.
91. Ibid., 29.
92. May, Hannah Arendt, 109–111.
93. Arendt, The Human Condition, 160.
94. Ibid., 198.
95. Ibid., 199.
96. Habermas, The Structural Transformation of the Public Sphere, 14–26. See also, Habermas, The Pragmatics of Communication, 23–25.
97. Habermas, The Structural Transformation of the Public Sphere, 19. Habermas wrote a paper, with Thomas McCarthy, about Arendt’s understandings regarding communication, see Habermas and McCarthy, “Hannah Arendt’s Communications Concept of Power,” 3–24.
98. Arendt, The Human Condition, 33.
99. Ibid., 28.
100. Ibid., 30–31.
101. Pitkin, The Attack of the Blob, 4.
102. Arendt, The Human Condition, 28.
103. Ibid., 134.
104. Ibid., 160.
105. Ibid.
106. Ibid., 31.
107. Arendt, Eichmann in Jerusalem, 29.
108. Ibid., 92.
109. Arendt, The Human Condition, 177–180.
110. Ibid., 178.
111. Ibid., 95.
112. See Habermas, The Theory of Communicative Action Vol. 1 339–342 (1984); Habermas, supra note 94, at 22–24.
113. Arendt, supra note 1, at 180. Arendt’s understanding is substantially similar to Habermas’s contention that communication in which all parties are open to engaging in open-minded, truthful discourse, rather than efforts to win or persuade, is ideal for democratic society. See, Habermas supra note 94, at 21–24, for example.
114. Arendt, supra note 1, at 262.
115. Ibid.
116. Arendt’s use of the Archimedean Point relates with the ancient thinker’s desire to find a point outside of human reality from which to observe phenomenon. Some scholars have associated Franz Kafka’s characterization of the Archimedean Point in the novel Amerika, as influencing Arendt’s use. See, Simms, “Archimedes the Engineer,” 53; and Schlant, “Kafka’s ‘Amerika’,” 213.
117. Heidegger and Jaspers had profound influences on Arendt’s philosophical development. She remained in correspondence with both, even after her romantic relationship with Heidegger ended and, much later, Heidegger was established as a Nazi sympathizer. See, Hinchman and Hinchman, “In Heidegger’s Shadow,”, 184–6; May, Hannah Arendt, 26–30.
118. See, Arendt, The Human Condition, 97, in which she discusses Nietzsche’s life philosophy; Arendt, The Life of the Mind, 172–3; overall, she refers to Heidegger on fifteen occasions in the work, devoting an entire section to his thought. In the same section, she draws upon her mentor, Jaspers, as well.
119. See, Arendt, The Human Condition, 293.
120. Ibid., 265.
121. Ibid., 283.
122. Arendt, The Life of the Mind, 61.
123. Holmes, Peirce, and James were friends and part of the “Metaphysical Club,” after the Civil War. The group discussed a pragmatic form of truth, which James outlined in his book, “Pragmatism.” Arendt cited Peirce, the father of American pragmatism, in Life of the Mind” See, Menand, The Metaphysical Club, 216–21; James, Pragmatism, 37; and Arendt, The Life of the Mind, 51.
124. See above 122., 50.
125. Ibid., 50.
126. Arendt, The Human Condition, 172.
127. Ibid., 132–33.
128. Ibid., 147.
129. Ibid.
130. Ibid., 134.
131. Ibid., 120.
132. Ibid., 151.
133. Ibid.
134. Ibid., 160.
135. Ibid., 208.
136. Ibid., 50.
137. Ibid.
138. Ibid., 41.
139. Ibid., 274–75.
140. Ibid., 275.
141. Ibid., 178.
142. Ibid., 152.
143. Ibid., 160.
144. Ibid., 134.
145. Ibid., 203.
146. Ibid., 31.
147. While the Supreme Court has not ruled about the rights of AI communicators, it concluded in First National Bank v. Bellotti, 435 U.S. 765 (1978), and Citizens United v. FEC, 558 U.S. 310 (2010), that an artificial entity, in these instances a corporation, can contribute to discourse and should not be limited because it is not human.