Last month, the Internet was briefly ablaze with the news that Tay, a Microsoft-built Twitterbot designed to interact with 18-24 year-olds in the persona of a teenaged girl, had interacted with the Twitterverse and become a racist conspiracy theorist in less than 24 hours. Microsoft understandably pulled the plug on the experimental AI, but that doesn’t end the creation of autonomous tweets of questionable value. There are numerous other Twitterbots that, with little to no human input, create original ideas, only some of which are truly worthwhile. These bots include:

• An AI-powered Donald Trump emulator (@DeepDrumpf) that analyzes the real Donald’s Twitter production and attempts to create new tweets that he could have said.

• A bot that analyzes TV shows and attempts to create new shows from those scenes by providing “improved,” original dialogue (@TVCommentBot).

• An AI-bot that generates metaphorical insights using a knowledge-base of stereotypical properties and norms (@MetaphorMagnet).

There are many others. Some of these have had legal implications for their creators, including a Dutch programmer who was questioned last year by Amsterdam police after a Twitterbot he created autonomously tweeted, “I seriously want to kill people” attending a fashion event in the city.

The programmer agreed to turn the bot off, and the police did not press any charges. However, the increasing prevalence of autonomously created speech and the threat of government action raise the question of whether the First Amendment’s protection of speech applies to Twitterbots that people don’t directly oversee. Can law enforcement or courts force the termination of a Twitterbot or impose fines on its creators? The Dutch example illustrates what police might do in the event of a “true threat” from a Twitterbot. The Tay debacle suggests that a Twitterbot could produce speech so hateful that local, state, or federal government might want to prohibit it.

The US Supreme Court’s history is full of cases considering how the First Amendment governs similar situations involving people. For example, in Virginia v. Black, the Court declared that “true threats” are not protected speech under the Constitution. A “State may choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” In the case of the fashion show Twitter threat, it’s unclear if that tweet, sent by a human being, would have been likely to inspire fear of bodily harm; cases like that are famously fact intensive. In Virginia, the Court permitted Ku Klux Klan cross-burning as a “message of shared ideology” but also permitted criminal punishment if the purpose of the cross-burning is to threaten someone. That’s a very fine line to draw.

And that fine line exists because there is no “hate speech” exception to the First Amendment. If Tay was a person, the First Amendment would protect every horrible tweet.

One of the foundational hate speech cases, R.A.V. v. City of St. Paul, considered an ordinance that criminalized any “symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Court’s majority opinion found that ordinance unconstitutional, explaining that a “State may choose to prohibit only that obscenity which is the most patently in its prurience – i.e., that which involves the most lascivious displays of sexual activity.” A state may not prohibit “only that obscenity which includes offensive political messages.” The awful things espoused by Tay fall into the latter category.

I would argue that’s true regardless of whether or not Tay is a person, but there have been no court decisions addressing speech generated by AI or autonomous programs like Twitterbots, partly because there are no ordinance or laws limiting that speech. A few more public relation disasters like Tay, though, and that will change. As Virginia and R.A.V. demonstrate, toxic speech eventually invites legislation in response.

And it’s not just hate speech that gets banned. The 20th century saw numerous government efforts to limit or ban freedom of political speech, from requiring equal time for opposing viewpoints in newspapers to criminalizing certain types of pamphlets. Purely political Twitter accounts like @DeepDrumpf are easy targets in a hyper partisan political culture, particularly if they are not protected by the Constitution.

The First Amendment does not specifically grant its protection to people; it places a burden on government, that it “shall make no law… abridging the freedom of speech.” There is nothing in that broad prohibition that removes Twitterbots and other autonomous programs. When we read hateful tweets, the temptation is to simply ban them and permit police to close down the account. It feels cleaner then when an actual person is speaking. A person has ideas and perspective; a Twitterbot has algorithms and programming. If the algorithm is silenced, no unique person loses his or her voice. But the ramifications are much larger than hateful autonomous tweets. Just like with people, if the First Amendment does not apply to all Twitterbots, all Twitterbots can be silenced, even the worthwhile ones, like @DeepDrumpf:

You're going to be even prouder when we don't have a clue about trade. Believe me. — DeepDrumpf (@DeepDrumpf) March 28, 2016

I think most people can agree that we want that speech protected. Fortunately, the First Amendment was over 200 years ahead of its time.