Computer World: Are AI posts on social media protected free speech?

“So, in terms of AI, they’re mainly focused on recommender systems and systems that automatically identify, remove, or down-rank content for content moderation purposes,” said Tom McBrien, counsel for the Electronic Privacy Information Center (EPIC), a non-profit research agency whose aim is to protect privacy rights. 

… EPIC’s McBrien said it’s unlikely, even if the cases go back up to the Supreme Court, that the Justices will announce a broad rule such as “generative AI outputs are protected expression” or the opposite. 

 “It’s going to be situational. In the Moody/Paxton cases, NetChoice was angling for them to say that newsfeed generation is always expressive, but the Court rejected this overbroad strategy,” McBrien said. “It remanded the case for the lower courts to parse through the arguments more granularly: what exact newsfeed-construction activities are implicated by the laws, which are claimed to be expressive, are they really expressive, etc.”  

… McBrien noted that Justices Amy Coney Barrett and Samuel Alito questioned whether using “black-box algorithms” should receive the same amount of protection, an issue that will be pivotal in the reexamining the case. “Since Justice Barrett’s vote was necessary to form the majority opinion, she will likely be the swing vote in the future,” McBrien said. 

The Supreme Court also cited an earlier case, Turner Broadcasting v the FCC; adjudicated in the 1990s, it resolved that cable television companies are protected under First Amendment free speech rights when determining what channels and content to carry on their networks. 

“The majority and concurrences pointed to the Turner Broadcasting case where the Court found that the regulation at issue did restrict speech, but because it was passed for competition reasons, not speech-regulating reasons, it was constitutional,” McBrien said. “One could imagine something similar in the realm of generative AI.”

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