First Amendment Limits on AI Liability
Published by The Lawfare Institute in Cooperation With
Editor’s note: This essay is part of a series on liability in the AI ecosystem, from Lawfare and the Georgetown Institute for Technology Law and Policy.
Generative artificial intelligence (AI) output is likely protected by the First Amendment, much like human-written speech is generally protected. But the existing First Amendment exceptions, such as that for defamation (written libel or oral slander), would apply to such output. AI companies therefore enjoy substantial protection for AI-generated speech, but not absolute protection.
Though current AI programs are of course not people and do not themselves have constitutional rights, their speech may potentially be protected because of the rights of the programs’ creators. But beyond that, and likely more significantly, AI programs’ speech will likely be protected because of the rights of their users—both the users’ rights to listen and their rights to speak.
As the second part of this piece will note, this isn’t absolute protection, just as protection for directly human-authored speech isn’t absolute. The restrictions will still be governed by the familiar First Amendment rules dealing with, for instance, prior restraints, distinctions between content-based and content-neutral restrictions, strict scrutiny of content-based restrictions, and the like. But the important point is that those rules will likely indeed apply, rather than there being some categorical rule that AI output is unprotected or less protected.
