6/15/2023 0 Comments Speech timer for macIn the 20th century, the First Amendment was about protecting speech from government. Read More: The A-Z of Artificial Intelligence The question is whether government can regulate AI to prevent unconstitutional speech. Such speech is unconstitutional, whether it is created by a human, an algorithm, or a toaster. At the same time, it makes sense that government can restrict any AI speech that is traditionally not protected by the First Amendment: libel, criminal solicitation, false advertising, child pornography, and speech that leads to imminent lawless action. The modern Court has shown over and over that government cannot restrict speech because of its message, its subject matter, or its content. It certainly contributes to the marketplace of ideas-it may well contribute too much. It is speech that is created out of the raw material of human speech. But it seems pretty clear that content created by generative AI probably has free speech protections. AI itself is not human and cannot have constitutional rights, writes Cass Sunstein, just as a vacuum cleaner does not have constitutional rights. The future of media and content will be bound up with generative AI in ways that we don’t yet know. It’s still early days, but there seems no limit to what generative AI can create: stories, poems, essays, children’s books, animated videos, movies, and actual speeches. Or whether the source of that information is human, a corporation, or, well, an algorithm. Government, he wrote, should not dictate how or where citizens get their information. “The government,” Kennedy wrote, “may not…deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.” In other words, speech that adds to the market of ideas, whatever its source, contributes to democracy and is worthy of protection. Whatever you may think of the decision, Justice Kennedy argues that speech is such an “essential mechanism of democracy” that even the speech of corporations is equal to any other speaker. Federal Election Commission made it clear: it’s not the speaker that matters, but the speech-and that non-human actors like corporations can have free speech rights. “Congress shall make no law…abridging freedom of speech or of the press.” But the 2010 decision in Citizens United v. The text of the First Amendment itself does not specify. Until recently, the Supreme Court had not cared much where those thoughts might come from, or whether their source must be human.
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