Scarinci: Supreme Court Raises First Amendment Concerns About AI-Generated Content

The members of the U.S. Supreme Court are generally not known for being tech-savvy. However, in a recent First Amendment decision involving online platforms content-moderation policies, several justices flagged an even bigger question — how should the First Amendment be applied to content generated by artificial intelligence (AI)?

Understanding Generative AI

The use of Generative AI technology has skyrocketed in recent years. The term refers to the use of AI to create new content, including text, images, music, audio, and videos. Platforms like ChatGPT rely on large language models or LLMs. Rather than being programmed by software engineers, large language models are “trained” by copying massive amounts of text and extracting expressive information from it. Once properly “trained,” platforms like ChatGPT and LLaMA allow users to enter text prompts. The AI platforms then attempt to respond with a coherent and fluent response that closely mimics human language.

To produce text outputs, LLMs rely on information extracted from their training datasets, along with patterns and connections drawn from the data. For example, if an LLM is prompted to generate a writing in the style of a certain author, the LLM would generate content based on patterns and connections it learned from analysis of that author’s work within its training data.

First Amendment

As with other new technologies, generative AI raises many novel legal questions. So far, one of the most widely discussed areas is intellectual property law, particularly liability for copyright infringement. In their recent decision in Moody v. NetChoice and NetChoice v. Paxton, members of the Supreme Court raised another important issue — how should the use of AI alter its First Amendment analysis?

The cases before the Court involved legal challenges to state laws in Texas and Florida that restrict social media companies’ ability to moderate content on their platforms. While the state laws are slightly different, both limit social media platforms’ ability to engage in content moderation by removing, editing, or arranging user-generated content. Trade associations representing the platforms challenged both laws on First Amendment grounds.

The Supreme Court ultimately found that the lower courts failed to properly consider the plaintiffs’ facial challenges and remanded the cases. Justice Elena Kagan’s majority opinion established several “constitutional principles” that should guide the lower courts’ analysis, all of which suggest that the platforms are entitled to First Amendment protection.

“When the platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices,” Justice Kagan wrote. “And because that is true, they receive First Amendment protection.”

In their concurring opinions, Justices Amy Comey Barrett and Samuel Alito questioned how the use of algorithms and AI would impact First Amendment protections. In her concurrence, Justice Barrett questioned the constitutional significance of platforms relying on AI to moderate content, writing:

What if a platform’s owners hand the reins to an AI tool and ask it simply to remove “hateful” content? If the AI relies on large language models to determine what is “hateful” and should be re- moved, has a human being with First Amendment rights made an inherently expressive “choice . . . not to propound a particular point of view”? In other words, technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings’ constitutionally protected right to “decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence.”

Justice Alito also emphasized that the vast bulk of the “curation” and “content moderation” carried out by platforms is not done by human beings. “Are such decisions equally expressive as the decisions made by humans? Should we at least think about this?” he questioned.

The justices are correct. Going forward, courts will have to grapple with how to apply First Amendment precedent to AI. Key questions include: What happens if content is moderated using AI with no human involvement? Do First Amendment protections still apply?  What about content created by AI? Can AI commit defamation? While courts have tackled groundbreaking technology before, it is usually a slow process and not without some bumps along the way.