such regulations pass muster under the
First Amendment?
Admittedly, these applications are
novel artifacts not envisioned by the
founders.
First Amendment protections are
not without exceptions; for instance,
they do not authorize people to violate
intellectual property or reputational
rights. U.S. citizens are not free to engage in libel, copyright infringement,
or sedition. Obscenity is only partially
protected.
None of these exceptions apply to
the expressive activity involved in automated legal-assistance systems.
Alleged misinformation or harmfulness is not viewed as justifying suppression of books, except in extreme
circumstances. Government is not
appropriately in the business of judging the quality or content of speech. A
landmark casep held that distributing
the 1965 book How To Avoid Probate
did not constitute the unauthorized
practice of law.
One may be inclined to suggest that
some automated systems are a form of
“commercial speech” and thus deserve
less protection. Commercial speech
has generally been understood as the
activity of beckoning business, not the
substantive content of what is being offered. Selling a book does not render it
any less deserving of First Amendment
protection than giving it away for free.
An alternative way to avoid First
Amendment issues is to conclude that
programs are not “speech” at all but
a form of conduct, analogous to the
work of manual document preparers.
This involves distinguishing between
“pure” speech and “speech plus” that
entails actions, as well as words. Sometimes speech-related action is not
protected if it is physically dangerous.
Does such a dangerousness rationale
extend to communicative action?
Several legal scholars have tentatively concluded for the unconstitutionality
of repressing online legal services under the guise of the unauthorized practice of law.q The following sections lay
out an analytical framework that may
support more definitive conclusions.
A typology of expressions. Figure 1
outlines one way to organize the vari-eties of expression a legal self-helper
might access; blue boxes are categories,
and green boxes contain examples.
Expressive conduct falls into two
main categories: creating artifacts, or
works of authorship, and “
performing,” or engaging in live, real-time
communication with others. Artifacts
in turn are either static (with fixed content in a fixed order) or dynamic (
programmed to present different content
in different orders depending on external triggers (such as a user’s behavior
interacting with it). Performances fall
into two high-level categories: those
in which communication is unidirectional, or one-way, (such as speeches)
and those in which communication is
bidirectional (such as one-on-one and
many-to-many conversations).
Some features apply to multiple
branches of the Figure 1 tree:
˲ Most modes of expression can be
through either physical or electronic
means; for practical purposes, programmed content and social-media
interaction can be accomplished only
electronically;
˲Electronically mediated expression can happen offline or online; that
is, via electronic networks (such as the
Internet) and protocols (such as the
Web);
˲ Artifacts can include charts, diagrams, tables, flowcharts, decision
trees, and other graphical elements;
such things can also be used in most
forms of performative expression;
˲ Artifacts can include audio and
video elements that can also be used in
performances; and
figure 2. three modes of assistance.
• “Canned”
• Textual
• Authored
• Dynamic
• Bidirectional
• generative
Program
• Automatic
• rule governed
Book
• static, passive
• Impersonal
• unidirectional
service
• “Live”
• spontaneous
• Interpersonal
p See New York Lawyers Ass’n v. Dacey, 234 N.E.2d
459 (N. Y. 1967)