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Generative AI and the future of last-century law — First Amendment News 411

“We drive into the future with our eyes fixed on the rearview mirror.” Marshall McLuhan
First Amendment News logo with Ronald Collins signature

It’s an old (but often overlooked) story: New communication technologies first change the culture and its norms, and then the law.

Centuries ago (circa 370 BC), Plato indicated as much in his “Phaedrus,” when Socrates attacked the notion of transforming the spoken word into writing. The same principle was at work with the advent of the printing press when it trumped scribal texts and ultimately upset the rule of the Papacy. Given how the Gutenberg technology rearranged the architecture of life and law, Madison and his colleagues wisely set out to protect a technology — “or of the press.” One modern example is the arrival of the Internet and how, among other things, it functionally decriminalized obscenity (or most of it) and operationally legitimated a large swath of libel law.

And now that old story is beginning to repeat itself with the arrival of Generative Artificial Intelligence.

No doubt, the lawyerly impulse will be to drive the jurisprudential car unmindful of Marshall McLuhan’s admonition. And why? Well, there are several reasons:

First, old cerebral habits die hard. Second, we tend to think we can comfortably align our outmoded conceptions of law with the modern workings of communications technologies. Third, black-robed judges and case-crunching lawyers don't adequately comprehend how the new technologies stand to reorder our lives and values. Fourth, there is the utilitarian factor: the greater the utility value of some technology, the greater the tendency there will be to abandon old norms — e.g., simply witness how younger people value privacy so much less than their elders when it comes to social media.

In all of this, there is the law and then there is the culture, the latter of which often eclipses the former in practical and normative ways. (To explore more in this vein, consider Collins and Skover, “Robotica: Speech Rights and Artificial Intelligence,” Cambridge University Press, 2018).

As we open our minds to the new vistas of Generative AI, let us pause and begin by getting an informed grasp of AI and its workings in our lives. Realism must precede precedent, after all.

Then, let us consider the respective values and harms of the new technologies as best as we can now calculate them. After such preliminary inquiries, these kinds of free speech questions can be asked:

  1. To what extent is Generative AI speech within the meaning of the First Amendment?
  2. Insofar as certain types of AI fall within that conceptual purview, how are we to think of the causation principle when it comes to some alleged breach of law, either civil or criminal?
  3. Then ask yourself: when it comes to Generative AI, who is the speaker to whom such expression might be attributed?
  4. Moving along that conceptual path, how does the conception of a “speaker’s” intention play into the Generative AI model of communication? 
  5. Continuing: how are we to think of the harm principle when considered against the backdrop of the relative benefits of the new communications technologies? 
  6. Yet again: how will the law of free speech interact with other areas of law? — e.g., everything from copyright law to criminal law.

Legal Challenges

According to the Bipartisan Policy Center, no fewer than three legal challenges regarding AI have been filed by media companies, journalists, authors, artists, or others:

  1. Most recently, a lawsuit filed by the New York Times accuses OpenAI and Microsoft of widespread copyright infringement and competition concerns. At its core, the lawsuit asserts that both companies used millions of published news articles by The Times to train their large language models (LLMs), powering generative AI chatbots such as OpenAI’s ChatGPT and Microsoft’s Copilot.
  2. A proposed class action lawsuit filed in July 2023 alleged Google misused personal and private information to train its AI system. The plaintiffs, including authors, artists, journalists, and others, argue Google used their data without “notice, consent, or fair compensation.
  3. Another proposed class-action lawsuit filed by three artists in U.S. federal court in San Francisco claimed that billions of copyrighted images enable AI text-to-image generator tools like Stability AI, Midjourney, and DeviantArt to create images in those artists’ styles without permission or compensation.

Upcoming Event

In all of this, will old constitutional paradigms suffice to adequately answer such questions? To that end, the ever-cutting-edge folks at the Knight First Amendment Institute will host an event on February 20 entitled Generative AI: Free Speech & Public Discourse. The keynote speakers include Tatsunori B. Hashimoto (Stanford University), Dilek Hakkani-Tür (University of Illinois Urbana-Champaign), and Bruce Schneier (Harvard Kennedy School).

Generative AI, Free Speech, & Public Discourse event poster

Related Literature

Court denies Oregon lawmakers’ First Amendment claim to legislative boycotts

A federal judge has rejected a request from Oregon Republican state senators who boycotted the Legislature to be allowed on the ballot after their terms end. 

U.S. District Court Judge Ann Aiken issued the decision Wednesday.

State Sens. Dennis Linthicum, Brian Boquist and Cedric Hayden were among the plaintiffs who filed the federal lawsuit to challenge their disqualification from running for reelection under Measure 113. The voter-approved constitutional amendment, which passed by a wide margin last year, bars legislators from seeking reelection after 10 or more unexcused absences. 

Each of the three senators racked up more than 10 absences during a record six-week walkout that paralyzed the 2023 legislative session. The boycott stemmed from bills on abortion, transgender health care and guns.


Florida lawmakers consider antisemitism criminal legislation

Legislation aimed at fighting anti-Jewish hate is making its way through the legislature, but the idea to clearly define criminal antisemitism has been running into some roadblocks.

HB 187 sailed through the House with only three no votes and is currently going through the process in the Senate with a similar bill called SB 148.

But those three representatives who voted against it aren’t pro-hate, they’re worried about First Amendment concerns within the language of the bill.

“Antisemitism has been slowly on the rise. And it's about time that Florida recognized that,” said bill sponsor State Representative Michael Gottlieb, (D) District 102.

Rep. Gottlieb says HB 187/SB 148 is intended to give law enforcement a clear definition of antisemitism to help prosecute hate crimes.

Arizona lawmakers propose regulating online pornography

Republican lawmakers have proposed a series of bills this year aimed at trying to regulate online pornographic content that critics say would run afoul of the constitutional free speech protections. 

They have tried to pass new laws in recent years aimed at requiring websites that host adult content to require photo identification for users to access the sites, but those bills have failed to pass as lawmakers questioned their constitutionality

But things are different now: Several states have enacted legislation of their own that requires operators of adult-oriented websites to confirm the age of users by using photo identification. As a result, many pornographic websites have chosen to block all access in those states, citing the challenges they say the laws create. 

Lawsuits challenging the laws enacted in some of these states are also still ongoing. 

Senate Bill 1125 by Flagstaff Republican Sen. Wendy Rogers is a retread of a measure she sponsored last year, which critics said was a stripped-down version of a similar law enacted by Louisiana.

Is feeding the needy political speech?

Food Not Bombs activists argue that feeding the needy is core political speech, and that they don't need the city's permission to do it.

For months, Houston police have been citing and arresting local volunteers for the radical act of feeding the needy. Now the city is facing a lawsuit alleging that its crackdown on charitable giving violates the First Amendment.

The Texas Civil Rights Project filed a federal civil rights lawsuit Wednesday on behalf of the Houston chapter of Food Not Bombs (FNBH), a volunteer group that distributes free food in cities worldwide. Since last March, Houston has been trying to force FNBH activists and other volunteers to move their charitable food services to a city-approved parking lot rather than near the downtown library where they had been operating with the city's consent for more than a decade. According to the suit, FNBH members have received over 89 citations from police so far, amounting to $178,000 in fines.

The suit argues that Houston's anti–food sharing ordinance is unconstitutional both on its face and as applied to FNBH by imposing an invalid prior restraint on the activists' protected First Amendment rights. The city is also violating FNBH's right to expressive association, the group argues, by attempting to force them to move to the parking lot, which happens to be next to a Houston Police Department building and is patrolled by several officers during events.

FIRE: 85% of top colleges have ‘restrictive speech codes’

FIRE’s 2024 Spotlight on Speech Codes report rates 489 of America’s top colleges and universities on the degree to which their policies restrict student speech.

After over a decade of progress, the number of colleges and universities with the harshest student speech codes increased for the second year in a row.

“This is not an anomaly: Free speech in higher education is getting worse,” said Laura Beltz, director of policy reform at the Foundation for Individual Rights and Expression. “America’s top colleges are increasingly turning to censorship and terrible policies to police their students’ ability to speak freely.”

FIRE’s 2024 Spotlight on Speech Codes report rates 489 of America’s top colleges and universities on the degree to which their policies restrict student speech. 85.4% of those schools have at least one policy that could be used to improperly censor students for constitutionally protected speech.

The 2024 report finds that:

  • 98 colleges (20.0%) earn a “red light” rating, meaning they have at least one policy that clearly and substantially restricts freedom of speech.
  • 320 colleges (65.4%) earn a “yellow light” rating, meaning they have policies that are vague or restrict relatively narrow categories of speech.
  • 63 colleges (12.9%) earn FIRE’s highest rating, a “green light,” meaning they have no policies that seriously threaten student speech.
  • Eight colleges (1.6%) receive a “Warning” rating, meaning their policies do not promise students free speech rights.

FIRE’s Spotlight ratings are based solely on the school’s written regulations and do not take into account a particular institution’s broader climate for free speech. Good policies can still be abused, but bad policies create a chilling effect on expression and eliminating them is a necessary first step to fostering a positive environment for free speech for years to come.

Lukianoff on ‘Real Time with Bill Maher’

FIRE president Greg Lukianoff joins Bill Maher to discuss the standard for free expression on college campuses.

WATCH: When Does Free Speech Cross the Line? | Real Time with Bill Maher (HBO)

New scholarly article: Citron on cyber gender abuse

For too long, cyber abuse has been misunderstood and ignored. For everyday women and minorities, cyber abuse is unseen and unredressed due to invidious stereotypes and gender norms. The prevailing view is that cyber abuse is not “really real,” though in rare cases authorities take it seriously. Justices of the U.S. Supreme Court demanded and received extra protection for themselves after facing online threats, but, in oral argument in Counterman v. Colorado, a case involving a man who sent a woman hundreds of unwanted, terrifying texts, members of the Court suggested that victims might be overreacting. In other words, protection for me (the powerful) but not for thee. 

The Court’s ruling sent a clear message to victims that their speech and liberty do not matter as much as the speech of people whose words objectively terrorize them and gave law-enforcement officers and prosecutors additional reasons not to pursue cases. The Supreme Court has made matters much, much worse.

Empirical proof now exists that makes nonrecognition difficult to justify. Studies show that cyber abuse is widespread and has profound injuries, and that the abuse is disproportionately borne by women, who often have intersecting disadvantaged identities—hence, the moniker cyber gender abuse. 

After years of advocacy and scholarship, it pains me to acknowledge the continued invisibility of cyber gender abuse. Progress is possible if we recognize our failings and commit to structural reform. Internet exceptionalism must end for the businesses best situated to prevent destructive cyber gender abuse. Congress should also condition the immunity afforded content platforms on a duty of care to address cyber gender abuse and eliminate the legal shield for platforms whose business is abuse.

‘So to Speak’ podcast: Thoughts on the words ‘free speech’

Michael Malice is a self-described "anarchist without adjectives" and is the author of several books, including most recently "The White Pill: A Tale of Good and Evil." He is also the host of the podcast, "YOUR WELCOME," and the subject of the biographical comic book, “Ego & Hubris: The Michael Malice Story.”

Michael joins us today to explain why he hates the term “free speech,” and gives his thoughts on McCarthyism, anarchism, Twitter, and more.

Corn-Revere on the 20th anniversary of the ‘nipple-gate’ case

Less than 24 hours after Janet Jackson and Justin Timberlake's infamous "wardrobe malfunction" at the 2004 Super Bowl Halftime Show, the FCC sent CBS a letter demanding a full investigation. 

That's a shorter response time than the United States declaring war on Japan after Pearl Harbor — and it was over a flash of partial nudity that lasted 9/16ths of a second.

For the next 8 years, FIRE Chief Counsel Bob Corn-Revere defended CBS against the FCC "sharpening their enforcement blade." Corn-Revere and his colleagues won the case, reversing the $550,000 fine against CBS and preventing the FCC from using this incident as a way to gain more censorial power over TV networks.

It was a victory for free speech and the First Amendment, and proof that censorship is never the answer.

WATCH: The nip ‘slip’ seen 'round the world


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2022-2023 SCOTUS term: Free expression and related cases

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Pending petitions

State action

Review denied

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This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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