Today, TechFreedom published a new paper, “AI + 1A: Why the First Amendment Protects Artificial Intelligence,” by Corbin K. Barthold, the organization’s Internet Policy Counsel. The paper pushes back on the many kneejerk attempts by legislatures to regulate the content of large language models such as ChatGPT, Claude, and Gemini.

“Attacks on AI-generated speech are attacks on you,” said Barthold. “The Supreme Court has held, over and over, that Americans have the right to encounter and judge ideas. AI outputs are information, and the public has a constitutional right to receive them. The move to curtail that right rests on the assumption that citizens cannot be trusted to think for themselves. That is not how this country works.”

“The panic over AI is the latest in a long line of panics over new communications technologies,” Barthold continued. “Change prompts fear, and fear spurs calls for censorship. But the panic is likely to pass, just as the others did. Judges should avoid distorting First Amendment principles in a manner that will someday look overblown and silly. Meanwhile, both conservatives and liberals should recoil at the image of a government controlled by their political opponents dictating what AI can and cannot say.”

“The government needs to be more careful in how it regulates AI outputs,” Barthold concluded. “Most of the regulatory proposals now circulating—such as bans on AI companions for minors or sweeping prohibitions on AI-provided expert advice—are content-based restrictions that trigger and fail strict scrutiny. There are interstices in which a state might act consistent with the First Amendment, but they are narrow—and legislatures are not finding them.”

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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