Intentionally Unintentional: GenAI Exceptionalism and the First Amendment

TL;DR

This paper argues that outputs from large generative AI models should not be granted First Amendment protections because they lack intentionality and do not constitute speech, which could hinder regulation and societal interests.

Contribution

The paper challenges the assumption of First Amendment protections for AI outputs, emphasizing their lack of intentionality and the implications for free speech law and regulation.

Findings

AI outputs are not considered speech due to lack of intentionality

Extending First Amendment rights to AI could hinder regulation

Protecting AI outputs may facilitate misinformation spread

Abstract

This paper challenges the assumption that courts should grant First Amendment protections to outputs from large generative AI models, such as GPT-4 and Gemini. We argue that because these models lack intentionality, their outputs do not constitute speech as understood in the context of established legal precedent, so there can be no speech to protect. Furthermore, if the model outputs are not speech, users cannot claim a First Amendment speech right to receive the outputs. We also argue that extending First Amendment rights to AI models would not serve the fundamental purposes of free speech, such as promoting a marketplace of ideas, facilitating self-governance, or fostering self-expression. In fact, granting First Amendment protections to AI models would be detrimental to society because it would hinder the government's ability to regulate these powerful technologies effectively, potentially leading to the unchecked spread of misinformation and other harms.