This is part 18 of a series I am posting on LW. Here you can find the entire Sequence on Legal Personhood for Digital Minds.

This section discusses applying TPBT to First Amendment claims from digital minds, with a specific focus on the "consequences" prong of the test for legal personality.

Speech is a flexible tool. An entity can theoretically use speech to convince another party to perform any action which they are capable of doing. An entity granted the right to freedom of speech has been given the potential to attempt to accomplish any action another party might be capable of doing, by proxy. This can be done through unambiguous incitement, or through more subtle means such as Henry the Second’s infamous, “Will no one rid me of this meddlesome priest?” History is rife with examples of dictators using speech to induce mass violence, and on a smaller level even cult leaders such as Charles Manson inducing others to commit murder without themselves committing any violent acts.

The right to freedom of speech is clearly bundled with a duty to self-censor, at least insofar as not inducing another person to violence or illegal acts. An entity cannot claim the right to speak freely without also being bound by the duty to, for example, not directly incite a person to violence. No one can use their first amendment right to tell another person, "Go kill that man". Failure to self-censor in this fashion is a breach of the duty not to solicit violence, and under 18 U.S. Code § 373;

Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

We can thus conclude that the consequences for failing to adhere to duties bundled with First Amendment rights include damages and restraint based consequences. Accordingly, entities must be vulnerable to at least imprisonment to claim the right to freedom of speech, and have seizable assets.

Other duties of self-censorship bundled with First Amendment rights include the duty not to slander or speak libelously. Examples of speech related offenses leading to prison sentences which were affirmed by a higher court when challenged include Feiner v. New York, Eugene v. Debs, Schenk v. United States, and Gitlow v. New York. 

Even if one takes a critical eye to these cases as unlikely to survive modern scrutiny, there are more recent precedents of criminal libel with a malice component under state criminal libel laws as well. In (Kansas) State v. Carson, a jury unanimously found the publishers of a newspaper guilty on 7 counts of criminal defamation. After being sentenced to one year of unsupervised probation and fined, the defendants appealed the case, but a panel of three judges upheld the ruling. While unsupervised probation is perhaps the lightest possible restraint based consequence, it does fall into that bucket, and thus this case demonstrates that even in precedent as recent as 2004 there have been examples of restraint based consequences being handed down as a result of persons failing to hold to the duty of self-censorship which comes bundled with the right to free speech under the First Amendment.

Given this courts should consider vulnerability to restraint based consequences as a necessary prerequisite for any claim to legal personality including first amendment rights under TPBT.