Cass R. Sunstein
92 Geo. Wash. L. Rev. 1207
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 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.
