Federal judge rules AI chatbots don't have free speech protections — for now
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Recruitment, development, career transition. LHH, a beautiful working world. Discover recruitment solutions at LHH.com slash beautiful. Artificial intelligence can talk like a human. So does it have free speech rights? From American Public Media, this is Marketplace Tech. I'm Novosafo.

There's a lawsuit right now that's testing that question. And before we get into it, a warning that our story today includes discussion of suicide. Last year, 14-year-old Sewell Setzer III took his own life after having months of conversations with a chatbot powered by character technologies. That company operates a bunch of character-driven chatbots.

Setzer's mother, Megan Garcia, sued, saying her teenage son was engaged in a virtual emotional and sexual relationship with one of those AI characters. The company moved to have the case dismissed, in part on free speech grounds. But the presiding judge refused, saying Character Technologies has more work to do to prove that it enjoys free speech protections.

Here to explain what this means is Jane Bambauer. She's a law professor at the University of Florida with a focus on the First Amendment and the tech industry. I thought that the court might find that AI chatbot output is speech for many of the same reasons that other media are speech, but that doesn't answer the ultimate question of what happens in this case.

But the court didn't say that. This judge found that actually we don't even have to do a First Amendment analysis. So whatever difficulty there might be under state law bringing a claim of this sort,

Anyways, you know, those questions can be answered down the line because there are natural questions about, you know, when a company or even an individual should be held responsible for somebody else's suicide. But the First Amendment has no say. It's not going to put a thumb on the scale and make it harder for the state to impose a penalty.

And the distinction the judge made, at least initially, saying, you know, character AI still has to prove a First Amendment protection in this case, that it's not immediately apparent to the judge. And the reason the judge said it's not immediately apparent is because she can't tell whether the chatbot is simply stringing together words that people want to hear or whether it's actually expressing itself. Can you explain what distinction the judge is making there?

Yes, but the judge was actually picking up on something that Justice Amy Comey Barrett at the Supreme Court had said in a different case involving social media. So Justice Comey Barrett had said, if what a social media company is doing is using algorithms just to give the precise posts that they

listeners or users want to see at that moment, we can't really say that the social media company is engaged in its own expression. And so in this case, the judge said, okay, well, if that logic applies to social media companies that are deciding which posts to present, then it surely should apply just as easily, maybe even more readily to chatbots where there is no human deciding which word is going to come next.

It's a large language model program that is kind of stochastically guessing which word should come next. And so there is no speaker. There is no one trying to express any idea in particular. Now, I don't actually think that's sound, but in part, I think that's

That's not consistent with a lot of existing First Amendment case law because the free speech clause protects not only speakers but listeners as well. And so when the judge in this case asks the defendants to come back with more evidence basically that they are engaged in expression...

I think it makes sense to ask, well, does someone who received the chatbot, the chatbot, you know, kind of content, are they receiving something that we'd call expressive? And I think so. We'll be right back.

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So what does this mean for the AI industry? I mean, it's trying to get to the point where it has artificial general intelligence, full-on conversations between humans and machines. Let's say this case continues and the judge's ruling stands in the long term. What are the implications there?

The implications are huge because if that output is found to be non-speech, then it could be regulated or even banned entirely. And so I think the entire industry is waiting on tinderhooks to see if they're going to have at least some protection that forces courts to ask whether a lawsuit or a statute or a regulation works.

is really consistent with the idea that people who want to receive some kind of information have some right to receive it. And so we're far from that in terms of people being able to ban AI conversations. What happens in this case now? How does it move forward?

I'm actually not sure we're far from that. So there were some states that tried to ban specific types of chatbot output right ahead of the 2024 election. Those attempts were unsuccessful because of early kind of preliminary First Amendment analyses. So I do think actually this will be an area where regulators and lawmakers see that there's some risk that people are understandably

nervous about what the impact from AI could be, both in terms of unintended harm, but also maybe even on the labor market. And so there might be a lot of pressure to regulate this sooner rather than later. The judge in this case, though, has issued a preliminary decision. There's still potentially a trial. Potentially she could be convinced that

You know, Character AI could make its case. In fact, the Character AI told us they're looking forward to continuing to press their case on this, that they've set certain safeguards in place, especially for children under 18. So they have a lot of levers still to pull. And do you think at the end of the day, Character AI...

will come out successful in their arguments, at least in part on the free speech grounds. Yeah, I expect Character AI's company to make a number of arguments, some related to free speech, as a reason to go slowly or to ask whether imposing liability under these circumstances would wind up wiping out an industry that

maybe teenagers as a whole get some benefit out of it. So they have some arguments both within the First Amendment and outside of it as well. We'll have a link to the federal judge's decision on our website, marketplacetech.org, as well as Character Technology's statement in response to the judge's ruling. Jesus Alvarado produced this episode. I'm Nova Sapo, and that's Marketplace Tech.

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