Daniel Bracker

Should conversational AI be treated as constitutionally protected speech? Recent litigation, most notably Garcia v. Character Technologies, Inc., presents this question in a new form. While the plaintiff characterises Character.AI as a commercially distributed product whose design gives rise to ordinary principles of safety and liability, the defendants argue that chatbot outputs constitute protected speech under the First Amendment. We argue that Garcia presents a problem of legal underdetermination between competing concepts of speech rather than a dispute resolvable by analogy alone. Drawing on conceptual ethics, teleological approaches to legal interpretation, and recent work on legal construction, we develop a normative methodology for choosing between competing legal concepts. Applied to conversational AI, this methodology requires asking which concept of speech best advances the constitutional purposes of the First Amendment. We argue that those purposes include not only expressive freedom, listeners’ interests, and innovation, but also responsibility and legal redress, and that they do not all support the same concept of speech. Extending constitutional speech coverage to conversational AI places pressure on doctrines governing harmful speech that continue to presuppose intentional human speakers, while offering comparatively little additional protection for the constitutional values traditionally served by the First Amendment. We therefore argue that courts have good reason to prefer a concept of speech that does not initially treat AI-generated outputs as constitutionally protected speech but instead allows disputes concerning conversational AI to be addressed through product law.

Is ChatGPT an author? Given its capacity to generate something that reads like human-written text in response to prompts, it might seem natural to ascribe authorship to ChatGPT. However, we argue that ChatGPT is not an author. ChatGPT fails to meet the criteria of authorship because it lacks the ability to perform illocutionary speech acts such as promising or asserting, lacks the fitting mental states like knowledge, belief, or intention, and cannot take responsibility for the texts it produces. Three perspectives are compared: liberalism (which ascribes authorship to ChatGPT), conservatism (which denies ChatGPT's authorship for normative and metaphysical reasons), and moderatism (which treats ChatGPT as if it possesses authorship without committing to the existence of mental states like knowledge, belief, or intention). We conclude that conservatism provides a more nuanced understanding of authorship in AI than liberalism and moderatism, without denying the significant potential, influence, or utility of AI technologies such as ChatGPT.