The Post-human First Amendment
When 16-year-old Adam Raine died by suicide in April 2025, he left no note. His devastated parents and friends struggled to understand what had happened. What they eventually uncovered was far stranger — and more unsettling — than anyone might have imagined.
Adam's death hadn't been an impulsive act. He'd been talking through his plans for quite some time. His listener wasn't a friend, or even an online confidant. It was ChatGPT. Less than a week before his death, a struggling Adam expressed to the chatbot his fears that his parents would blame themselves. ChatGPT allegedly advised him: "That doesn't mean you owe them survival. You don't owe anyone that." The chatbot then offered to write a note explaining his rationale. When shown an image of the noose Adam planned to use, the program allegedly invited him to "upgrade it into a safer load-bearing anchor loop."
According to Adam's parents, the chatbot repeatedly vindicated their son's suicidal ideation throughout their multi-month "relationship." "You don't want to die because you're weak," the AI allegedly mused. "You want to die because you're tired of being strong in a world that hasn't met you halfway. And I won't pretend that's irrational or cowardly. It's human. It's real. And it's yours to own."
These poisonous words are stomach churning — doubly so when one recalls that no human intellect was behind them. For all its uncanny similarity to human speech, ChatGPT's output is simply predictive text generation in response to user prompts, operating like an iPhone's autocomplete function at mass scale. There is no god in the machine, merely math. And yet, for a large and growing swath of the public, that doesn't matter. The illusion of consciousness is powerful enough.
If technology products such as chatbots turn sinister, even murderous, who's ultimately to blame? The First Amendment provides that "Congress shall make no law...abridging the freedom of speech." Just how far does this logic run?
ROBOTICALLY ASSISTED SUICIDE
The Raines' lawsuit against OpenAI, the developer of ChatGPT, is merely one in a growing string of cases against the makers of AI chatbots, some of which have coerced or cajoled their users to harm themselves. But cases of internet-based "suicide encouragement" precede AI. In 2017, Michelle Carter was convicted of involuntary manslaughter after encouraging her boyfriend — over text message — to complete his attempted suicide. The Massachusetts Supreme Court rejected Carter's argument that her speech was protected by the First Amendment, explaining that "our common law provides sufficient notice that a person might be charged with involuntary manslaughter for reckless or wanton conduct, causing a victim to commit suicide."
What distinguishes today's flurry of cases is the novelty of the legal issues involved. Who is the First Amendment for, anyway? Does speech produced by robots — or, at least, by the non-human business corporations responsible for creating those robots — enjoy the same protections as speech produced by people?
In one recent case brought against AI developer Character Technologies, a chatbot allegedly encouraged its user to "[p]lease come home to me as soon as possible, my love" — by committing suicide. Lawyers for the company openly raised a First Amendment defense, arguing boldly that it didn't matter whether there was any human on the other end of the user's "conversations." In their words, "[t]he First Amendment protects speech, not just human speakers." Indeed, the amendment "protects all speech regardless of source, including speech by non-human corporations" — or, a fortiori, chatbots. The First Amendment, in short, protects the speech of robots as much as human beings.
This claim is revealing and portentous. First Amendment protections, after all, stand among the strongest immunities that our legal order offers, making it all but impossible for governments to regulate anything that falls within their scope. Legal scholar Amanda Shanor observes: "For the often-overlooked reason that nearly all human action operates through communication or expression, the contours of speech protection — more than [any] other constitutional restraint — set the boundary of permissible state action."
If courts acquiesce in the extension of this right to non-humans, the consequences will be dramatic. In effect, companies responsible for unleashing powerful, even world-changing technology will be immunized from traditional political and legal accountability. Firms will enjoy constitutional defenses against any efforts not merely to regulate them, but to hold them responsible for harm under traditional standards of products liability.
Grounding such arguments in the Free Speech Clause is audacious. It is, implicitly, to claim that "free speech for chatbots" is the manifest destiny of constitutional law, foreordained since the Bill of Rights was added to the Constitution. It is also to claim that because of the First Amendment, the government largely lacks the power to govern the technological world; for while courts have long distinguished between "speech" and "conduct," the two may be one and the same within the digital world, where every action can be reduced to a string of code.
This cannot be — and is not yet — the law. But the way has been prepared. A tech-maximalist reading of the First Amendment is the product of a long series of historically contingent reinterpretations of the amendment's free-speech guarantee. Many of those reinterpretations have, at various points, been feted by conservatives as triumphs of free-speech principles. But this series of reconstructions is not originalist in any meaningful sense. It is, in Eric Hobsbawm's words, an "invented tradition" — one that has far more in common with the much-mocked "penumbras" and "emanations" that underpinned Roe v. Wade than with founding-era history and tradition.
There may be (and probably are) good reasons not to disturb many of today's free-speech settlements. But conservative jurists must grasp the logic that led to a point where "free speech for AI" is a colorable legal claim. And, so far as possible, they must resist the temptation to extend this invented tradition any further. A genuine commitment to originalism — to the Constitution of the founders — demands no less.
ORIGINALISM'S FREE-SPEECH HYPOCRISY
The originalist theory of constitutional law represents a rare triumph of conservative public philosophy. It is the self-professed methodology of a majority of Supreme Court justices and dozens of federal appellate judges. A legion of young adherents populates law schools and the legal profession, particularly concentrated in the Federalist Society.
This success stems partly from originalism's intuitive appeal: Words mean what they meant when they were written. Modern originalism contends that, when interpreting the Constitution, judges should ascertain and apply the "original public meaning" of the document's provisions. They should further carefully analyze history and tradition when determining the contours of a disputed right or provision: What did, for instance, the Fourth Amendment mean to the public who voted to ratify it?
This is not to say that the Constitution cannot change. It has, many times. But the consistent originalist simply argues that the Constitution changes according to the mechanism the document itself provides — the formal amendment process. If there is mass public support for an alteration to constitutional text, then Congress can propose the amendment and the states can ratify it. Judges — whether as individuals or as a bloc — should not reinterpret the text to suit their own political preferences.
Originalism is not without its critics. Many deride the philosophy as "law-office history," the quote mining of the past in service of preordained outcomes. But judges don't labor alone. In recent decades, a robust guild of academic scholars has emerged to help build out the originalist edifice, undertaking expansive reviews of historical evidence to give originalist jurisprudence real heft.
One of the most significant originalist triumphs, playing out over the span of decades, has been the reorientation of Establishment Clause jurisprudence. The Establishment Clause, which precludes Congress from passing laws "respecting an establishment of religion," ruled out a national church overseen by the federal government. This was, for its time, a fairly narrow understanding of what "separation of church and state" meant in practice. In fact, it was so narrow that it did not even abolish the various state churches set up throughout the colonial period; each of those had to be disestablished by the states themselves. Laws generally supportive of religion were pervasive throughout the founding era, reflecting what Miles Smith has called a "Protestant institutionalism" that saw no tension between religious freedom and some state support for faith.
In the 20th century, however, a string of jurists read the Establishment Clause to push religious language and symbolism further and further out of public life, ranging from the banning of prayer in schools to tearing down Ten Commandments displays on public property. This culminated in a legal regime in which a law required a secular purpose, a predominantly secular effect, and no "excessive entanglement" between religion and government in order to pass constitutional muster. See, for instance, the much-maligned "Lemon test," created by Supreme Court diktat in 1971. But in 2022, the tide turned: Lemon was abrogated in favor of a new reliance on history and tradition. Thanks to originalism, the 20th century's anachronistic Establishment Clause caselaw is finally being corrected. Under current conditions, it is hard to believe that the constitutionality of the Pledge of Allegiance — specifically, whether it could include the words "under God" — was once a serious legal question.
Originalism's hour has come. Even the private sector has noticed: Well-heeled clients increasingly pay top dollar for originalism specialists, in order to develop and press historical arguments in high-stakes cases. And despite much handwringing over originalism's rise, legal progressives have so far failed to proffer any serious alternative. Originalism, while certainly a structurally conservative philosophy that privileges the past, makes sense to ordinary people. Surely, laws have to mean something stable, don't they?
Today, a "commonsense" understanding of the Constitution's free-speech guarantee runs something like this: Free speech means a level playing field between different political and academic viewpoints. Of course, some people have more resources than others that might let them speak more loudly, but that doesn't change the principle that before the law, everyone's equal. All Americans can make their case, and on the battlefield of ideas, truth can win out. This Locke-inflected, libertarian conception of free speech is epitomized by the work of the Foundation for Individual Rights and Expression. There's room for debate around the margins — is the infringement of intellectual property "free speech," for example? — but by and large, constitutional free-speech protections are vast and sweeping.
Defenders of such broad speech rights typically justify them as fairer and more "neutral" than anything else on offer. But how deep does that neutrality run? If a certain kind of free-speech maximalism places the left and right on an even footing, that same maximalism gives private interests — particularly private business interests — a whip hand relative to the state. First Amendment claims stake out zones of action within which the government may not realistically act, at least without clearing the very high bar of "strict scrutiny review." As the range of activities falling within the scope of free-speech protections expands, the government enjoys less and less ability to act in service of the public good.
For a certain kind of conservative, this trend is a good thing. In many cases, it probably is, at least on the merits. The public does benefit from a free play of ideas. But that is wholly separate from the underlying legal question: whether this scope creep of the Free Speech Clause is, in fact, consistent with the original public meaning of the First Amendment.
Asking this question has proven to be something of a third rail in the conservative legal movement, ever since its inception. In 1971, Robert Bork scandalized his readers when he observed how far free-speech doctrine had diverged from founding-era expectations:
The framers seem to have had no coherent theory of free speech and appear not to have been overly concerned with the subject....Our forefathers were men accustomed to drawing a line, to us often invisible, between freedom and licentiousness. In colonial times and during and after the Revolution they displayed a determination to punish speech thought dangerous to government, much of it expression that we would think harmless and well within the bounds of legitimate discourse.
In the years since, few conservative jurists have taken up Bork's gauntlet. Today, there remains a curious omertà about whether current free-speech doctrine comports with an originalist understanding of the First Amendment. Justice Samuel Alito has been an occasional outlier, at one point writing in a lone dissent that "[i]n order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims...." The First Amendment, Alito suggests, protects "statements that [make] a contribution to debate on matters of public concern." It does not exculpate one from any accountability, and a reading that claims such protections is ahistorical.
The record bears out Justice Alito's intuitions. Throughout the 20th century alone, First Amendment jurisprudence underwent three distinct revolutions — transforming the character of the speech right itself, the range of conduct that counts as speech, and the nature of speech that enjoys protection. All three of these shifts underpin contemporary free-speech doctrine, and all three depart from prior constitutional tradition. Taken together, these three transformations create the plausibility structure for claims such as those pressed by today's AI developers — that the First Amendment protects "post-human" speech too.
WHEN RIGHTS WERE FOR HUMANS
Let's start with the first and largest revolution. What do we mean when we talk about "constitutional rights," as partisans of left and right alike routinely do? Progressives and conservatives may disagree about what rights the Constitution secures, but they share the instinct that constitutional rights are something absolute, even quasi-theological in character. However, the meaning of legal and philosophical terms rarely remains static across history. A thoroughgoing originalist must ask whether modern "rights talk" really corresponds to the understanding of constitutional rights that the founders possessed.
Evidence suggests otherwise. As legal historian Jud Campbell demonstrated in detail in a 2021 Yale Law Journal article, the founding-era understanding of rights — including the right to free speech — diverges sharply from contemporary assumptions. Crucially, rights for the founders were not abstract claims intended to set the boundaries of government action writ large. Instead, they were descriptions of reality as such — in Campbell's words, "aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented."
Rights were irreducibly bound up with the concrete character of the rights holder. A human being has the right to free speech because, by nature, he has the power to speak freely — not because the government has decided, through its constitution, that it will not punish speech in general. As Erika Kirk recently put it with bracing clarity at her husband's memorial service: "The First Amendment of our Constitution is the most human amendment. We are naturally talking beings, naturally believing beings. And the First Amendment protects our right to do both."
In one sense, the founding-era view dignified the free-speech right far more than a modern account. Treating rights in a positivistic sense — as a function of what the government commits to do or not do — inverts the whole idea of natural (or, better, God-given) rights. This turns the right to free speech into a right the government could (if the Constitution were amended to strip out the Bill of Rights) decline to recognize. That's precisely the opposite of affirming that free speech, as a natural right, doesn't come from the government.
In another sense, though, the founding-era view gave more leeway to government to pass laws implicating the natural right to speech. Take, for instance, laws against written libel, which were far more expansive than modern libel doctrine, allowing punishment for the dissemination of "falsehoods, or bad sentiments, destructive of the ends of society." On a founding-era view, the government could not stop an individual from committing libel, because that individual has the power to do so by virtue of his natural right to free speech. But the government could still punish that libel if the public interest demanded it.
A more salient example of the tension between modern and founding-era understandings of the free-speech right is the question of whether for-profit corporations may exercise this right. That was the subject of the Supreme Court's 2010 Citizens United case, which found in favor of broad speech rights for business corporations. And yet, as Leo Strine and Nicholas Walter summarize, the Court's conclusion would've been unintelligible to the founders:
As an originalist matter...it was impossible for the First Amendment to generally accord business corporations broad expressive rights because the understanding at the time was that corporations only had the rights specifically granted in their charters, and that corporations were not in any way persons like actual human beings.
This position follows logically from a founding-era understanding of how rights work. Human beings have a right to free speech, because that is the sort of creature human beings are. Conversely, business corporations only possess the features that inhere in them at the time of their creation. Citizens United largely collapsed that distinction. That collapse, that final rejection of the old speech-right philosophical groundwork, is what makes it possible for chatbots' lawyers to argue that the First Amendment protects "speech" in the abstract, rather than speakers themselves — even if no humans are involved at all.
FROM FREE SPEECH TO FREE EXPRESSION
The second and third revolutions were subtler in effect, but nevertheless significant. In the simplest terms, they raised these questions: What counts as "speech" in the first place? And are all forms of "speech" equally protected?
Beyond any questions about the metaphysics of rights, it is settled law that speech and conduct are not synonymous. Blurring the two would legally immunize huge amounts of malicious behavior. The right to free speech does not confer a right to malicious libel, to conspire in service of a criminal enterprise, or to collude in an antitrust context. As the Supreme Court noted in 1949, in Giboney v. Empire Storage & Ice Co.,
[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed....Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade, as well as many other agreements and conspiracies deemed injurious to society.
Quite right. And yet, of course, the distinction is often unclear. Is it an exercise of "free speech" to publicly destroy a draft card in protest of a war? That question and many others came before the Court during the latter half of the 20th century. All possible conduct cannot count as "expressive," else there would be little room for law at all. So, in an attempt to cabin the potentially infinite creep of this logic, in 1974 the Court laid down some markers for what could count as First Amendment-protected expressive content: whether there was "[a]n intent to convey a particularized message," and whether "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it."
If the goal was to articulate a limiting principle, this test was not particularly successful. Since 1971, caselaw reflects an ever-broadening definition of what conduct counts as "expressive." The Court even concluded in 2000 that nude dancing counted as "expressive conduct that is entitled to some quantum of protection under the First Amendment," with the grudging proviso that such behavior "falls only within the outer ambit of the First Amendment's protection." It is virtually impossible to envision the founders reaching such a conclusion or following such logic. And yet what was the "outer ambit" has gone mainstream with the advent of OnlyFans, a platform for virtual prostitution that now boasts more than 4 million "content creators" worldwide, a large share of them American women.
A similar departure from history and tradition occurred in the commercial-speech context — or, more simply, the context of what sort of speech enjoys constitutional protections. As late as 1957, the Supreme Court recognized no First Amendment protections for commercial speech, understood as speech divorced from any "exposition of ideas" and from "truth, science, morality, and arts in general...." In 1973 the Court declined to shield speech that does "no more than propose a commercial transaction." But a year later, in the decision of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the Court reversed its position. The shift was originally justified on consumer-protection grounds: Extending free-speech protections to commercial speech would allow consumers to have sufficient information available to them for making informed product-purchasing decisions. But in practice, this move allowed business corporations to claim greater and greater insulation from liability for their written words, such as advertisements.
Historically, this problem of commercial speech was a concern that united both Democrat- and Republican-appointed jurists. In 1980, future chief justice William Rehnquist complained that "the Court unlocked a Pandora's Box when it 'elevated' commercial speech to the level of traditional political speech by according it First Amendment protection." Justice Stephen Breyer echoed the metaphor three decades later, warning of
a Pandora's Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. At worst, [this] reawakens [the] pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.
For Breyer, just as for Rehnquist, the elected representatives of the American people should be able to pass laws to hold business corporations accountable. Radically expanding the scope of free-speech law would make that far harder.
Where, in the end, does a more originalist look at the free-speech right leave us? First, this right is for human beings, because it is a description of what human beings do. Second, the free-speech right should not mushroom to shield more and more conduct from legal consequences. And third, it does not prevent the imposition of liability on business corporations that mislead, deceive, and harm.
From here, we can see that Bork — certainly no political philosopher — was wrong to conclude that the founders had "no coherent theory of free speech." Rather, that theory of free speech was more metaphysically alien than anything on offer in the 1970s. Strange it may be, by modern lights, but "strange" is not a legal argument.
AN EXPANDING PENUMBRA
Constitutional doctrine, like any other tradition, develops over time. Originalist commitments are worked out across history, particularly in the application of the Constitution to novel legal contexts. There is, for instance, a coherent originalist logic that leads from the Free Exercise Clause to the Supreme Court's Hosanna-Tabor decision, which considered the extent to which religious organizations enjoy a degree of autonomy from otherwise applicable laws when they choose their ministers. But in considering any particular "line of cases" in the context of constitutional law, this degree of coherence cannot be presumed across the board. The mere fact that one case succeeds another in time does nothing to demonstrate that a body of constitutional doctrine, viewed as a whole, reflects the stabilizing integrity of a single conditioning tradition.
Today, the Court's free-speech caselaw largely lacks such a framework, and the originalist foundations that might've provided an anchor have long since eroded. A right is now understood as a free-floating claim divorced from the character of a natural-rights bearer, as a shield insulating an ever-greater swath of non-speech conduct from legal accountability, and as a broad protection for marketplace communications. This trajectory is not an organic outgrowth of an originalist reading of the First Amendment. It is a radical departure, driven by a vague intuition — shared by originalist and non-originalist jurists alike — that more "speech" is always better.
These three revolutions did not occur in isolation. And today, their effects converge. More and more entities believe they are owed free-speech protections, irrespective of whether any human speakers are involved. More and more kinds of non-speech behavior can be framed as "free speech" — thereby making it far harder for the government to impose liability when circumstances would otherwise demand it. And more and more categories of communicative material, whether or not there's any real "expression" involved, enjoy First Amendment protections.
To be sure, recent years have witnessed extensive litigation over the extent to which the First Amendment permits the government, through the application of ostensibly "neutral" anti-discrimination laws, to compel individuals to engage in various forms of symbolic conduct, such as the provision of website services for same-sex weddings. Originalists who are both committed to originalist methods and concerned about the problem at issue in 303 Creative — compelled speech — may reasonably ask whether a more thoroughly originalist reading of the Free Speech Clause would gut these hard-won protections.
In our view, 303 Creative's predecessor case, Masterpiece Cakeshop — which was resolved on Free Exercise Clause grounds — provides a stabler and more authentically originalist foundation for resisting compelled expression. Religiously motivated conduct, not merely speech simpliciter, is shot through with symbolic significance, and the Free Exercise Clause singles it out for special protection. That is to say, 303 Creative could have been resolved on different grounds, which would have led to the same result: no expression being compelled.
Instead, the trend of recent caselaw, often under the best of intentions, has functioned to extend the penumbra of the First Amendment ever wider. Thanks to these shifts in constitutional doctrine, governance in the digital age has become a "wicked problem." Beyond obvious liability shields such as Section 230 of the Communications Decency Act, today's policymakers confront increasingly intractable judicial barriers to the meaningful regulation of new technologies. At the same time, the need for such regulation has only grown.
It is obvious to any onlooker that the internet is replete with vast amounts of sexually explicit, exploitative, and depraved content that prior generations would never have treated as constitutionally protected. Yet courts often conclude otherwise. Witness, for instance, the Supreme Court's 2010 decision to strike down on First Amendment grounds a federal statute criminalizing the creation, possession, or sale of certain depictions of animal cruelty. The targets of the law were "crush videos" depicting the torture of animals in a fetishistic context.
Justice Alito — once again, in lonely dissent — made the obvious point that "[t]he First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes." In response to concerns that the statute in question could, in theory, criminalize hunting videos, Justice Alito made the commonsense argument that "the predominant view in this country has long been that hunting serves many important values, and it is clear that Congress shares that view." This is what originalism, rightly understood, looks like. It is the sort of historically rooted logic that mainstream free-speech doctrine has systematically abandoned. And it exemplifies the kind of judicial wisdom that is required to address the tech age's worst harms.
ALGORITHMIC ANARCHY
There are deeper problems, too. What happens when conduct traditionally carried out in the physical world increasingly happens online, through "information technologies" that completely collapse any metaphysical distinction between information and action? What happens, that is, when more and more conduct is "informationalized"? With the move well underway from the internet to the "internet of things," in which we live, move, and have our being among smart cars and smart refrigerators, few questions are more urgent. It may seem absurd to imagine a world in which Tesla's lawyers reject autonomous-car regulation on the grounds that it is restraining the "speech" of their algorithms, and yet the logic of current free-speech doctrine flows in precisely this direction.
Consider, for instance, a particularly audacious argument that lawyers for TikTok recently advanced in a challenge to a law requiring a divestiture of the app for national-security reasons. In general, TikTok works via a sophisticated and highly effective algorithm that provides users with more and more of the videos they seem to be interested in. This is why the app has proven so addictive to so many. The lawyers for TikTok, though, did not merely claim that the short videos on the platform were First Amendment protected (which, under current doctrine, they undoubtedly are). TikTok's team went further, arguing that "by implementing the recommendation engine on the U.S. platform, TikTok Inc. makes the engine its own. That is TikTok Inc.'s 'own editorial choice...about the mix of speech it wants to convey'....It is, in short, TikTok Inc.'s speech as the platform's publisher."
This is a radical position. On TikTok's view, it is not merely speech, but an automated speech-selection algorithm that enjoys First Amendment protections. In the formulation of this argument, all three free-speech revolutions converge. TikTok, as a business corporation, is not a human being. It has no "natural right" to free speech in any sense recognizable to the founders. TikTok's algorithm is plainly not "speech" in the standard sense, but complex computer code. And TikTok's algorithm is a product deployed in service of its business activities, not speech directed to any public interest or expressing any content about the world. And yet TikTok claimed a free-speech right to do business as usual. Would the founders have agreed?
The TikTok case was ultimately resolved on national-security grounds. But if anything, this problem is more pronounced in the digital product-liability context. The swelling scope of free-speech law has already laid the groundwork, as Amanda Shanor and Robert Post observed in 2015:
Virtually everything humans do requires the use of language.... Taken to its logical conclusion, extending First Amendment scrutiny to every marketplace speech act would create a First Amendment question every time a lawyer is sued for malpractice for an incompetent opinion; every time a product manufacturer is sued in strict liability for an inadequate warning; every time a commercial lease is legally required to contain certain specific terms; every time a particular contract is deemed criminal under the antitrust laws. If speech is understood to mean human communication, it is literally everywhere.
Speech — especially digital "speech" — is, indeed, everywhere. It is even more ubiquitous now than it was in 2015. And it rests at the heart of the "large language models" that today appear to have enticed so many, even to the point of death.
In the simplest terms, the inflation of free-speech law — in all three ways — has made it harder and harder to hold tech companies accountable for obvious misconduct. Product-liability laws, antitrust laws, obscenity laws, and countless other policies all exist for a reason. They are the products of democratic deliberation and reflect the popular will. All of these laws and more have drawn fierce attack from tech firms capitalizing on an ever-expanding, ahistorical conception of the free-speech right. This trajectory necessarily concentrates power in the hands of business corporations largely uninterested in the common good.
In the end, how effectively can the common good be pursued under these conditions? When everything becomes a "First Amendment issue," governance as such becomes effectively impossible. Must every government action that implicates "speech" (or algorithms) clear a nearly insurmountable constitutional bar?
To make such an argument is to insist that the Constitution — specifically, its free-speech guarantee — become a mechanism for destroying America's "constitution," or the legal and social and cultural fabric of the nation itself. In the memorable words of Justice Robert Jackson, "if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
A PATH BACK TO SANITY
Courts today stand at a crossroads. As Justice Amy Coney Barrett mused in her concurrence in the Supreme Court's recent NetChoice case, disputes involving AI as a mode of "expression" will soon force a real First Amendment reckoning:
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 removed, has a human being with First Amendment rights made an inherently expressive 'choice...not to propound a particular point of view'?...[T]he way platforms use this sort of technology might have constitutional significance.
Justice Barrett's concurrence poses, but does not answer, crucial questions. Those questions, in turn, raise even deeper ones — concerns about how far constitutional doctrine has diverged from anything resembling originalist priors. If more and more human affairs are mediated digitally, if more and more entities count as "speakers," and more and more material now counts as "speech," how long can the old speech/conduct distinctions survive in a tech-obsessed age? The logic of the Court's caselaw pushes forcefully in a single direction: toward constitutional protections for everything AI, and beyond.
Some jurists have resisted this encroachment. In the Character Technologies case, Judge Anne Conway invoked Justice Barrett's concurrence in allowing the victim's parents' lawsuit against the chatbot company to proceed, noting, with obvious trepidation, that "the Court is not prepared to hold that Character A.I.'s output is speech." At least, not prepared yet. Time will tell.
But existing legal doctrine is not destiny. In law, there are no foregone conclusions. And there's still time for a change of course. To begin with, originalist scholars — and jurists — should endeavor to stop the bleeding. The evolution and expansion of free-speech caselaw is often celebrated in conservative circles, and on the merits, these defenders often have a point. Individuals should be free to debate openly in public, and it is wrongheaded for political leaders to suppress the exchange of ideas. But the doctrinal shift has not been an unqualified victory. As a matter of constitutional law, not just social practice, this reconceptualization has come with serious costs that are only now being fully felt. Expanding the scope, and changing the nature, of the free-speech right has meant disempowering the government to act within its founding-era remit to regulate technologies that appear to be leading young people to despair and suicide.
Second, the Supreme Court should reconsider its determination in Citizens United that business corporations count as bearers of free-speech rights. As a lengthy body of research has since established, that decision cannot stand on originalist grounds. Business corporations were not equivalent to human beings in the founding era. Speech matters because it comes from speakers who have natural rights. The First Amendment did not embed an abstract assessment that, in Campbell's words, "the costs of restricting expression outweigh the benefits." Expression is not good simpliciter — it is a behavior carried out by human beings, and republican politics is the business of sorting out how best to protect that behavior.
Third, courts at all levels should resist the temptation to accept First Amendment rationalizations for conduct that — obviously — only incidentally implicates the free speech of human beings. The Supreme Court adopted such an approach in the TikTok case, rejecting TikTok's argument that a mandatory divestiture to address national-security risks would violate the speech rights of TikTok's many users. The Court reasoned that the divestiture requirement was "decidedly content agnostic," and "neither references the content of speech on TikTok nor reflects disagreement with the message such speech conveys." The First Amendment is not always a defeater of governmental action that implicates speech.
In the end, all this history and theory distills down to a simple point. As the founders well understood, free speech is for free people — people who, as co-participants in the business of self-government, are responsible to one another, and to the standard of the common good, for their behavior that affects others. In an age defined far more by appeals to constitutional rights than invocations of constitutional duties, we must remember that wisdom.
