Keywords
artificial intelligence; AI; First Amendment; freedom of speech; generative artificial intelligence; GPAI; large language models; LLM; LLMs; regulation; AI regulation; Constitution; Constitutional law; machine-generated speech; Free Speech Doctrine; algorithmic speech; general-purpose artificial intelligence; EU; European Union; EU AI Act; EU Artificial Intelligence Act; content-neutral regulation; risk-based regulation; deepfakes; human dignity; data privacy; algorithms; human consciousness; intentionality; human intentionality;
Abstract
Intentionality and reason are intrinsic features of the human mind that large language models (LLMs) entirely lack. Although LLMs generate natural-language sentences through algorithmic processes, autonomously produced machine speech lacks the consciousness of human speakers. This intrinsic distinction between natural persons and artificial machines is consequential to whether LLM-generated outputs are covered by the First Amendment. Scholars who equate the constitutional value of human speech with algorithmic outputs tend to emphasize the informational value of those outputs to audiences while giving insufficient attention to the absence of machine consciousness. The conscious underpinnings of thought and their relation to constitutional protections should inform courts’ analyses of when, how, and to what extent algorithmic systems can and should be regulated without encroaching upon the Free Speech Clause.
A human-centered approach to free speech in the age of general-purpose artificial intelligence (GPAI) would preserve the rights of natural speakers while leaving legislatures meaningful authority to require human oversight. Such regulations should also safeguard democratic institutions and data privacy; require model transparency; and address unacceptable risks such as mental manipulation, social scoring, and unauthorized facial recognition. The European Union’s regulatory framework for artificial intelligence offers a useful model to help inform federal and state initiatives in the United States.
Recommended Citation
Alexander Tsesis,
Algorithmic Models and the Freedom of Speech,
95 Fordham L. Rev. 599
(2026).
Available at: https://ir.lawnet.fordham.edu/flr/vol95/iss2/7
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