AI speech is stretching First Amendment protections

A report from the Center for Democracy and Technology argues that AI-generated speech should be protected under the First Amendment, citing Supreme Court precedent extending free speech protections to new technologies. Author Becca Branum warns that without such protections, government regulation could degrade the information ecosystem as AI becomes embedded in search engines and social media. The report acknowledges that AI speech would still face consequences for unprotected categories like obscenity or incitement, but not for inaccuracy.

Regulators may soon grapple with where AI meets centuries-old laws protecting free speech. A report published Tuesday by the Center for Democracy and Technology https://cdt.org/wp-content/uploads/2026/07/2026-07-28-Whose-Speech-is-it-Anyway-Chatbots-report-final-1.pdf recommends that, despite little precedent for how courts have thus far considered AI-generated speech, content produced by generative models should be protected under the First Amendment. "Throughout history, consistently, the Supreme Court has said over and over again, whether it's film or TV or video games, or the internet, that the First Amendment has something to say when the government wants to decide what you can or can't access," Becca Branum, deputy director for free expression at the Center for Democracy and Technology and author of the report, told The Deep View As it stands, the courts have not yet settled whether AI-generated content is speech or simply a rearrangement of training data, making these systems what the report calls "stochastic parrots." But the First Amendment doesn't just cover what information people are allowed to say, but also the information they are allowed to receive, Branum said. This would mean that both AI developers and chatbot users are covered by the First Amendment, and that both parties are responsible for the output of these models, she said. "What's really unique about this technology is that two independent sets of editorial judgments and speech considerations come together to create outputs," said Branum. "For legal purposes, we think that those choices made both by users and by developers will be relevant for First Amendment consideration." However, just because this speech is protected under the First Amendment doesn't mean it's immune to all laws. It still faces the same consequences that unprotected speech categories face, such as obscenity, incitement of violence and child sexual abuse materials. Still, even if AI hallucinates and offers inaccurate information to users, such speech would be covered by the First Amendment, prohibiting the government from regulating it, because it's not illegal to be wrong . The crux of Branum's argument is that the consequences may be serious if the government decided that AI-generated speech wasn't protected by the First Amendment, especially given how deeply embedded AI is becoming in our search engines, social media platforms and the devices we carry in our pockets. "Without First Amendment protection there, it would really degrade the kind of information that we'd have access to, and subject these really important communicative mediums to government influence in ways that would degrade the broader speech ecosystem that we rely on online," Branum said. Our Deeper View The free speech question is just the tip of a large and complicated iceberg of how to regulate a machine that can communicate and act like a person. Though Branum's argument that AI outputs should be covered under free speech is sound when considering the consequences of regulating them, the question of who is responsible for these machines' outputs remains up in the air. The Center for Democracy and Technology's suggestion that it's a 50-50 split between the user and the creator could have broader implications, given that these AI systems are shifting from simply producing outputs to taking agentic actions. For example, if a bad actor uses an agent to help break through a bank's cybersecurity systems, are both the hacker and the company that provided the agent responsible for the fallout? Given the increasing capabilities of these models, questions like these are bound to arise again and again as legislators react to a landscape that's shifting faster than our ability to regulate it.