The Incompatibility of Artificial Intelligence and Citizens United
Ohio State Law Journal, Vol. 83, No. 6, pp. 1211-1273, 2022
63 Pages Posted: 20 Apr 2023
Date Written: February 26, 2023
In Citizens United v. FEC, the Supreme Court granted corporations essentially the same political speech rights as human beings. But does the growing prevalence of artificial intelligence (“AI”) in directing the content and dissemination of political communications call into question the jurisprudential soundness of such a commitment? Would continuing to construe the corporation as a constitutional rights bearer make much sense if AI entities could wholly own and operate business entities without any human oversight? Those questions seem particularly important, because in the new era of AI, the nature and practices of the modern corporation are quickly evolving. The magnitude of that evolution will undoubtedly affect some of the most important aspects of our shared social, economic, and political lives. To the extent our conception of the corporation changes fundamentally in the AI era, it seems essential to assess the enduring soundness of prior jurisprudential commitments regarding corporate rights that might no longer seem compatible with sustaining our democratic values. The dramatic and swift evolution of corporate practices in the age of AI provides a clarion call for revisiting the jurisprudential sensibility of imbuing corporations with full constitutional personhood in general and robust political speech rights in particular. For if corporations can use AI data mining and predictive analytics to manipulate political preferences and election outcomes for greater profits, the basic viability and legitimacy of our democratic processes hang in the balance. Moreover, if AI technology itself plays an increasingly important, if not controlling, role in determining the content of corporate political communication, granting corporations the same political speech rights as humans effectively surrenders the political realm to algorithmic entities. In the end, although AI could help corporations act more humanely, the very notion of a corporation heavily influenced or controlled by non-human entities creates the need to cabin at least somewhat the commitment to corporations as full constitutional rights bearers. In particular, with respect to corporate political activity, the growing prevalence of AI in managerial (and possibly ownership) positions makes granting corporations the same political speech rights as humans incompatible with maintaining human sovereignty.
Keywords: Corporate Law, First Amendment, Artificial Intelligence, Corporate Speech, Citizens United
JEL Classification: K22 - Business and Securities Law
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