This article originally appeared on the Los Angeles Times Opinion Page in December 2024 and is republished here with permission.
The Constitution should not be rewritten every time a new communications technology emerges. The Supreme Court reaffirmed this long-standing principle during its most recent term applying the First Amendment to social media. The late Justice Antonin Scalia articulated this point persuasively in 2011: “Whatever the challenges of applying the Constitution to ever-advancing technology, the freedoms of speech and the press are The basic principles remain the same.”
These principles should be kept in mind by Congressional Republicans and by President Trump’s recently elected artificial intelligence czar, David Sachs, as they shape policy regarding the emerging technology. The First Amendment standards that applied to older communications technologies should also apply to artificial intelligence, especially as it plays an increasingly important role in human expression and learning.
However, revolutionary technological change creates uncertainty and fear. And where there is uncertainty and fear, there will inevitably be unconstitutional regulations. Lawmakers in at least 45 states have introduced bills to regulate AI this year, and 31 states have adopted laws or resolutions regarding the technology, according to the National Conference of State Legislatures. Congress is also considering AI legislation.
Many of these proposals respond to concerns that AI will accelerate the spread of misinformation. While it is understandable to be concerned, misinformation does not qualify for absolute immunity from First Amendment protections. There’s a good reason for that. As Supreme Court Justice Robert Jackson put it in 1945, the framers of the Constitution “didn’t trust our government to distinguish between what is true and what is false for us,” and because “every man must know his own truth.” “You must be the watchdog of the world.”
Nevertheless, California enacted a law in September targeting “deceptive” digitally altered content about political candidates. The law was motivated in part by an AI-altered video parodying Vice President Kamala Harris’ candidacy that went viral earlier this summer.
Two weeks after the law went into effect, a judge blocked it, stating that “the principles that protect the public’s right to criticize the government…also apply in the new technological era” Penalties “have no place in our system of governance,” he said. ”
After all, we don’t need new laws regulating most uses of AI. Existing laws are fine. Defamation, fraud, false light and counterfeiting laws already address the potential for deceptive representations to cause real harm. And they apply regardless of whether the deception is enabled by radio broadcasts or by artificial intelligence technology. The constitution must protect new communication technologies, not just the ability to share AI-enhanced political memes. We must also ensure that AI is freely available to pursue knowledge production, another major First Amendment concern.
When we think about guaranteeing freedom of expression, we often think of the right to speak. But the First Amendment goes beyond that. As the Supreme Court held in 1969, “The Constitution protects the right to receive information and ideas.”
Information is the basis of progress. The more we have, the more hypotheses we can propose, test, and generate knowledge.
The Internet, like the printing press, was an innovation that accelerated knowledge. But Congress largely blocked the development of the Internet in the 1990s over concerns that minors would have access to “obscene” content. Fortunately, the Supreme Court got in the way by striking down much of the Communications Decency Act.
In fact, the Supreme Court’s application of the First Amendment to the new technology is so complete that Mike Godwin, an attorney at the Electronic Frontier Foundation, says, “My job is almost done, and I’m retiring from civil rights work.” I was wondering whether I should do it or not. Godwin will serve as general counsel for the Wikimedia Foundation, the nonprofit organization that runs Wikipedia, which was founded by cyber-libertarians in the 1990s to ensure freedom of expression and broad access to the internet. “We could not exist without the work we did,” he wrote. ”
Today, humans are developing technologies that have the potential to generate even more knowledge than the Internet. Knowledge production is no longer limited by the number of humans who can propose and test hypotheses. We can now collaborate with machines to enhance our efforts.
We are already starting to see results. Researchers at the Massachusetts Institute of Technology recently reported that AI is enabling labs studying new materials to discover 44% more compounds. Dario Amodei, chief executive officer of AI company Anthropic, said, “AI-enabled biology and medicine will reduce the advances human biologists will make in the next 50 to 100 years by 5 to 10 years. We predict that it will be possible to compress the data into
This promise can only be realized if America continues to view the tools of knowledge production as legally inseparable from knowledge itself. Yes, the printing press has created an explosion of “misinformation.” But it also made enlightenment possible.
The First Amendment is America’s great champion. Therefore, governments cannot regulate printing presses any more than they can regulate the words printed on a page. We must extend that standard to the arena where the next great fight for free speech will be fought: artificial intelligence.
