Nonhuman Speakers and the Constitution

Authors

• Helen Norton, University of Colorado School of Law

Keywords

First Amendment; Artificial Intelligence; Generative AI; Freedom of Speech; Government Regulation; AI Regulation; Government Speech Doctrine

Abstract

Long-standing free speech law sometimes does—and sometimes does not—turn on speakers’ human character. This Essay explores how these doctrinal threads might shape the constitutional doctrine applied to generative artificial intelligence’s (AI) speech outputs if we assume that a human speaker cannot be identified as the creator of those words and images—and that those words and images are nevertheless considered “speech” for First Amendment purposes.

For example, First Amendment doctrine sometimes requires proof of a speaker’s culpable mental state before that speaker can be held liable for what would otherwise be unprotected speech. These requirements seek to prevent the chilling of human speakers’ valuable expression and to ensure the punishment only of morally blameworthy human speakers. But because generative AI’s speech outputs do not pose these concerns, these doctrinal features requiring a human speaker should not apply to the government’s regulation of generative AI’s outputs—lest those outputs be insulated from liability for endangering human users.

Other long-standing First Amendment doctrines apply to the government’s regulation of speech regardless of the speaker’s human or nonhuman character. These doctrinal threads show that extending First Amendment coverage to nonhuman speakers’ expression need not foreclose the government’s regulatory efforts to protect human users from grave harm. At the same time, these doctrinal threads also show that First Amendment coverage of the words and images produced by generative AI can provide important guardrails against the government’s self-interested or clumsy regulation of those outputs despite their value to human users.

Finally, like its free speech doctrine more generally, the U.S. Supreme Court’s government speech doctrine generally remains indifferent to governmental speakers’ human or nonhuman character. Here, too, governments’ increasing use of generative AI for expressive purposes calls for an appropriately listener-centered government speech doctrine: one that recognizes the inevitability (and often the value) of government speech while constraining a limited but important universe of government speech that interferes with its targets’ exercise of their constitutional rights.

Recommended Citation

Helen Norton, Nonhuman Speakers and the Constitution, 95 Fordham L. Rev. 525 (2026).
Available at: https://ir.lawnet.fordham.edu/flr/vol95/iss2/4