Artificial Intelligence and the First Amendment

15 Pages Posted: 28 Apr 2023

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: April 28, 2023

Abstract

Artificial intelligence (AI), including generative AI, is not human, but restrictions on the activity or use of AI, or on the dissemination of material by or from AI, might raise serious first amendment issues if those restrictions (1) apply to or affect human speakers and writers or (2) apply to or affect human viewers, listeners, and readers. Here as elsewhere, it is essential to distinguish among viewpoint-based restrictions, content-based but viewpoint-neutral restrictions, and content-neutral restrictions. Much of free speech law, as applied to AI, is in the nature of “the law of the horse”: established principles of multiple kinds applied to a novel context. But imaginable cases raise unanswered questions, including (1) whether AI as such has constitutional rights, (2) whether and which person or persons might be a named defendant if AI is acting in some sense autonomously, and (3) whether and in what sense AI has a right to be free from (for example) viewpoint-based restrictions, or whether it would be better, and correct, to say that human viewers, listeners, and readers have the relevant rights, even if no human being is speaking. Most broadly, it remains an unanswered question whether the First Amendment protects the rights of human viewers, listeners, and readers, seeking to see, hear, or read something from AI.

Keywords: Artificial intelligence, free speech, ChatGPT

JEL Classification: K1, K10

Suggested Citation

Sunstein, Cass R., Artificial Intelligence and the First Amendment (April 28, 2023). Available at SSRN: https://ssrn.com/abstract=4431251 or http://dx.doi.org/10.2139/ssrn.4431251

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

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Cambridge, MA 02138
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617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
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