Intentionally Unintentional: GenAI Exceptionalism and the First Amendment
This addresses a legal and societal problem for courts and policymakers by challenging incremental assumptions about AI and free speech protections.
This paper argues that outputs from large generative AI models like GPT-4 and Gemini should not receive First Amendment protections because they lack intentionality and do not constitute speech, and extending such rights would hinder government regulation and increase societal harms such as misinformation.
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.