By Ashkhen Kazaryan
Key Takeaways
- The First Amendment protects people’s, corporations’ and other legal entities’ free speech rights from government restriction, but no court has found that AI programs themselves have the same free speech rights.
- AI-generated content is generally afforded the same First Amendment protections as content created by people or corporations and other legal entities, but it is also subject to the same established limits on speech.
- Efforts to regulate AI-generated content through disclosure or labeling requirements must be narrowly tailored to avoid violating the First Amendment.
- Liability for harmful AI-generated content depends on who created or shared the content. Platforms may be held responsible if the content is generated by their own AI tools.
Artificial intelligence is everywhere, generating text, images and videos on our phones and across the internet. As with every new medium of communication, from the printing press to the internet and now to AI, it raises pressing questions for courts and lawmakers to decide how the First Amendment applies to speech created, shared or shaped by these technologies.
Does AI have First Amendment rights?
The First Amendment limits the government’s power to punish or restrict speech.
When it comes to AI, the First Amendment rights at stake are held by the people, corporations or other legal entities who create and use AI; AI is a tool, not an independent entity, so it has no free speech rights itself. People using AI as a tool for expression and dissemination of speech are generally covered by the First Amendment and can raise the First Amendment if someone tries to hold them responsible in criminal or civil court for that expression and speech. Courts have consistently found that the First Amendment protects this speech regardless of the tools and mediums used to create and distribute it. Generating text or art with AI is still part of a person’s own expressive activity and a form of speech. So while AI cannot assert its own rights, using AI technology to produce or share speech, in all its different forms, is protected as part of one’s free expression.
The First Amendment also safeguards individuals’ rights to collect information as part of that expressive process. Generative AI, or AI that learns from existing data and uses that data to create new content, such as using a batch of stories to craft a new story, often serves as a tool for gathering and shaping such information.
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Ashkhen Kazaryan is a Senior Legal Fellow at The Future of Free Speech, where she leads initiatives to protect free expression and shape policies that uphold the First Amendment in the digital age.