Laurent Sacharoff teaches law at the University of Arkansas School of Law, where he specializes in criminal law and government surveillance.

Once again, Facebook’s management is contorting itself over reports that it denied and ignored Russian trolls and bots that had infested its platform to sway the 2016 election. But even as Facebook has vowed to stamp out these malicious bots, it and other platforms have pushed their own chatbots as the next wave in communication and marketing. These charming, chatty bots that currently pervade Facebook Messenger largely focus on selling stuff and otherwise interacting with business customers.

Of course, anyone who has interacted with even the most sophisticated bots today can quickly tell the bot is not human. They lack flexibility, return too quickly to a script or simply provide anodyne and evasive answers in order to stall for time. Nevertheless, when they operate on a narrow band, they can perform well. Google’s Duplex can book a hair salon appointment or restaurant reservation in ways that are eerily convincing.


But as bots continue to develop their own machine learning intelligence, does it make sense to ask whether they themselves have rights equivalent to the humans they are imitating?

“There is a rough consensus among experts that automated speech such as that generated by online bots” at least implicates the First Amendment, writes law professor Ryan Calo of the University of Washington School of Law. Those rights may yield to other important interests, but any law or regulation of bots, Calo argues, must at least grapple with the First Amendment right of those using the bots, or of the bots themselves.

The question of bot-speech-rights suddenly took on real-world significance this summer when California passed what is, perhaps, the first bot law. This law, going into effect next summer, requires online bots to identify themselves as bots, at least those that interact with human beings trying to sell stuff or promote a candidate in an election.

The motivation for the law was clear: Russian bots had infected our election. They spread fake news, and even when their bots promoted true stories, those stories tended to drown out organic discussion among real Americans. The bots could trigger trends of Russia’s preferred stories, distorting the entire discourse. California’s law, therefore, seems to many a sensible balance between free speech and regulation. “The law is the right call,” said Helen Norton, a law professor at the University of Colorado Law School studying free speech in the contemporary landscape. In a democracy, she said, voters need to know where their messages are coming from. Professor Toni Massaro at the University of Arizona College of Law agreed: “I think states should be given some room to experiment with these things. Whether they’ll be given the room by the Roberts court remains to be seen.”

Indeed, if the Supreme Court’s recent rulings on First Amendment cases are any indication, the California bots law might soon become the next example of the willingness to “weaponize” the First Amendment—in the words of Justice Elena Kagan.

That’s because bot rights, and the new California disclosure law, sit at the juncture of several strands of free speech doctrine that might come together in a uniquely powerful way: the free speech rights of corporations; the right against being compelled to say something, as opposed to being banned from saying something; the right to anonymous speech; and finally, the right to lie.

“If they stick to their logical guns on all [these] points—it points to extremely robust free speech rights for bots. That’s the short answer,” Massaro said.



***

When Mitt Romney, running for president, reminded a member of an audience that corporations enjoy rights just as people do—“Corporations are people, my friend”—he was lampooned as a campaign trail version of the Simpsons character Mr. Burns. But of course, he was right: Corporations enjoy many constitutional rights, including a right to free speech.

But it is why corporations enjoy free speech rights that forces us to understand the true purposes of the free speech clause, and its connection to bots.

We think of free speech as protecting the right of the individual to express herself. It is her right, and it furthers her happiness and flourishing. One might think only human beings can hold such a right, because only human beings, and not corporations or bots, express themselves to further their own happiness and develop their own faculties.

But one of the key purposes of free speech is to further the interests of listeners. In a democracy, we voters need information to decide for whom to vote, and which policies to endorse. If the government suppresses the speech of an individual, that suppression hurts democracy because it prevents us from learning that information.

Similarly, free speech allows us—again, as listeners—to learn information to further our happiness. Whether we want to learn a recipe, a medical treatment or simply enjoy a movie, we can only do so fully if those who write, publish or distribute these messages can do so without government prohibitions.

The Supreme Court has thus made clear that corporations enjoy free speech rights so that we can learn the information they have to make informed election decisions. As the Supreme Court said in Citizens United: “Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.”

Regardless of your broader view of Citizens United, the underlying principle makes at least some sense. If, for example, a candidate wants to raise the minimum wage to $15 an hour, many of us would at least like to hear from corporations what effect they anticipate such a raise will have on prices and employment. A state ban on corporations telling their side of the story would strike many as the government imposing its will on the debate.

Online bots, like corporations, may well fill a similar role. In 2017, young, liberal activists in the United Kingdom used bots on Tinder to promote Labour candidates in tight races. The bots—posing as a human being—would engage a person in flirty conversation before turning the talk to politics and candidates to whom many young people would otherwise not even pay attention. According to news reports, the bots sent 30,000 to 40,000 messages. Labour netted a surprising 30 seats in Parliament.

But the California law does not ban bots outright, so we cannot simply assert bots enjoy a First Amendment right in general. Here is where context becomes so critical. We ask not whether bots enjoy free speech rights, but whether they enjoy a particular kind of free speech right: the right to remain anonymous, and the right not to be compelled to say a message, even if true, that they are bots.



***

Traditionally, the free speech clause prevents the government from suppressing speech, punishing a person for what he says. Under the compelled speech doctrine, the free speech clause also prevents the government from forcing a person to say something.

This doctrine grew from a very sympathetic case, but has morphed into a new, free-standing right to be free of government regulation. In 1942, an elementary school required Christian students to pledge allegiance to the flag in violation of their religion, which prohibited worshipping graven images. These Jehovah Witness students and their parents sued, and the next year the Supreme Court held the required pledge violated the First Amendment—not the free exercise of religion clause, but the free speech clause because the pledge required speech that violated their conscience.

Today, the doctrine applies to any compelled speech, not just religious speech. For example, just this year, the Supreme Court held unconstitutional a California law that, among other things, required clinics that opposed abortions to put up a sign telling pregnant women they were not licensed to provide medical care. The message was true—they were not licensed clinics. The signs were quite possibly necessary (though not according to the court)—the clinics sometimes left the impression they were medical facilities. The message itself was not religious or even controversial. It simply stated a neutral, uncontroversial fact: They are not medical facilities. It did not require them to endorse abortion or make some statement of fact that might be controversial.

But the court held the disclosure requirement to be unconstitutional compelled speech. Even though it compelled a fact that itself was uncontroversial, the topic of abortion is controversial. Moreover, the law, according to the court, did not apply to other kinds of clinics, only those providing pregnancy-related services.

Now, many legal scholars believe this clinic case takes the compelled speech doctrine too far. Read properly, the compelled speech doctrine should apply only to “beliefs, not true and uncontroversial facts,” Helen Norton said. Nevertheless, five votes make law, and the case furthers a doctrine that threatens many disclosure regimes, from tobacco packaging to bots.

Thus, if bots enjoy free speech rights, either directly or derivative of their authors, then compelling them to state even a true and uncontroversial fact—that they are not human beings—seems to parallel the requirement that clinics state they are not medical facilities. In both cases, the fact is true and provides important information for the listener to help her evaluate the value of the other messages from the bot, or the clinic.

We can draw the analogy even more closely. Imagine a pregnant woman gets online to research abortions. An anti-abortion group has paid an online marketing service to identify and track pregnant women based on their web searches, and the service deploys a sophisticated chatbot to pop up and say, “Hi, I’m Julie from Pregnancy Counselors of America.” The chatbot goes on to have a pleasant conversation with the woman, who believes she is speaking with a real person. The chatbot listens to the woman’s concerns about having a baby, perhaps even says that she (the bot) had also found herself pregnant once, and gently provides her with information about the development of the fetus, adoption options, and so on, until the woman decides not to have an abortion. The woman never realizes she was talking to a bot the entire time.

Does this scenario differ sufficiently from the anti-abortion clinic case to distinguish it? It seems not.

The California law would not apply to this scenario exactly, because it requires disclosure from bots that electioneer, or sell products. But we can apply the same principle: Surely a bot trying to promote a particular candidate will be far more effective if the listener believes she is interacting with a real person, a young, enthusiastic supporter of the candidate taking the time to convince others, rather than a computer program. If the chatbot says, “As a mother, I am also very concerned about guns in schools and I wouldn’t bother making all these calls if I didn’t think candidate Mark will prioritize this issue.” It’s not hard to believe the message would lose some its persuasive oomph if the bot first says, “As a bot-mother of bot children, I am very concerned.”

Of course, this hypothetical shows why it is so important that bots be required to disclose their botness. “It is almost always in the listener’s interest to know identity of the speaker,” Norton said.

Speakers have the right to speak anonymously, and speakers have the right to lie—at least if they do not directly harm another, such as with fraud. The right to lie comes most recently from the “stolen valor” case, in which the Supreme Court nullified a law that punished anyone who claimed to have won military decorations who hadn’t.

In the end, context will matter most. A court will likely consider how necessary and effective the California law proves to be. According to Calo, the law professor, the law is unlikely to reduce the volume of bots and their distorting effect on the marketplace of ideas, simply because disclosure does not ban the bots, and Russian bots are unlikely to comply with the law anyway.

Before too long, it is not unlikely someone on the campaign trail will utter an updated version of Romney’s famous line: “Bots are people too, my friend.”

