By Alan Butler
Tom McBrien, counsel for the Electronic Privacy Information Center (EPIC), a non-profit research agency focused on protecting privacy rights, discussed the implications of AI-generated content on social media and its protection under free speech laws.
“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,” McBrien stated.
McBrien expressed skepticism about the Supreme Court issuing a broad ruling regarding generative AI outputs as protected expression. “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,” he explained. “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.”
Justices Amy Coney Barrett and Samuel Alito raised concerns about whether using “black-box algorithms” should receive equivalent protection. McBrien noted that Justice Barrett’s vote was crucial in forming the majority opinion and she might play a pivotal role in future decisions.
The Supreme Court referenced Turner Broadcasting v. FCC from the 1990s. This case determined that cable television companies are protected under First Amendment free speech rights when deciding 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.”
