‘This must be the place’: the role of freedom of expression in the debate on AI regulation

In the ongoing global debate on AI regulation,Footnote ¹³ freedom of expression stands out as a ‘stone guest’ of no small importance to the elephant in the room. There are various well-known reasons why speech may deserve protection:Footnote ¹⁴ its contribution to individual self-fulfilment, its key role in democracy or its function in advancing the search for truth. These correspond to the traditional positive theories that advocate for speech protection. As will be illustrated below, none of these justifications inherently exclude the viability of ‘AI speakers’. However, a fourth, negative justification – rooted in the suspicion of government interference – best explains the importance of freedom of expression in an AI-driven society in which the public sphere is increasingly populated by digital artifacts. While the three positive theories may have limited potential when it comes to what constitutes ‘machine speech’, the negative justification based on suspicion of government control remains fully relevant regardless of whether the source of content is human or artificial.

Some of the issues that have gained prominence in the discussions around AI and its legal implications are strongly intertwined with freedom of expression. Determining the constitutional status of AI-generated content may not only help to decipher the impact on content policing but also solve questions regarding the enforcement of the right to data protection vis-à-vis, for example, large language models, or the relationship of AI-generated content with copyright.

Copyright is perhaps the main subject of the current discussions revolving around generative AI regulation.Footnote ¹⁵ In the copyright domain, the main problems posed by AI concern both the use of copyrighted material in the input phase and the creation of potentially infringing content in the output phase.Footnote ¹⁶ Not by coincidence, some resounding lawsuitsFootnote ¹⁷ concern the lawfulness of the use of content published in the exercise of the freedom of information by the press. Looking at these cases, one can clearly see that new business models ‘competing’ with traditional editorial actors have emerged.Footnote ¹⁸ This may raise concerns about the potential impact on the quality of professional information, which is essential for maintaining the democratic character of society. If individuals ‘trust’ ChatGPT or Gemini more than a professional source of information, this can have undesirable consequences (such as the spread of misinformationFootnote ¹⁹) and ultimately challenge, or otherwise weaken, the well-established role of the press as a public watchdog.Footnote ²⁰

The common understanding of copyright protection faces substantial challenges in the generative AI era as it has historically been rooted in a human authorship paradigm. These challenges stand out as useful terms of comparison to freedom of expression: while in the domain of copyright it is necessary to look for a human who qualifies as an author to properly speak of authorship, protected speech can exist even in the absence of a (human) speaker. If the lack of a person to qualify as a speaker were a determinative factor in excluding constitutional coverage, the framing of the problem would most likely be incorrect. The key point that this article aims to explore is why AI-generated content can amount to speech, regardless of the presence of a ‘speaker’.

Long before the advent of generative AI, scholars and courts were grappling with similar issues in the context of less-advanced technological developments. These efforts were focused on some forms of ‘algorithmic speech’,Footnote ²¹ such as search engine results in the USFootnote ²² and search engine autocomplete suggestions in Europe.Footnote ²³

However, it is only in the US that scholars have specifically addressed algorithmic speech. This may depend on the peculiar understanding of free speech rights inherent in the ‘exceptionalism’ of the First Amendment,Footnote ²⁴ which is reflected in its wording.

In the US, an investigation into Google’s search practices launched by the Federal Trade Commission in 2011Footnote ²⁵ triggered a discussion around search engine results as protected speech. The investigation sought to determine the existence of alleged search engine bias due to Google’s dominance in the search advertising market. In 2013, the Commission concluded its investigation and found no evidence of any manipulation of Google’s algorithms to unfairly influence the display of its search results.Footnote ²⁶

Against this background, Volokh and FalkFootnote ²⁷ have argued that search engines are akin to editors and, thus, are speakers that enjoy First Amendment protection,Footnote ²⁸ despite the fact that they ‘produce and deliver speech through a different technology than that traditionally used for newspapers and books’.Footnote ²⁹

Wu has opposed these views by appealing to a de facto ‘functionality doctrine’, which serves to differentiate (human) expressions covered by the First Amendment from merely functional machine communications.Footnote ³⁰ Years before, Bracha and Pasquale had advanced a similar line of reasoning, arguing for a prevailing performative rather than propositional character in the communicative acts of search engines,Footnote ³¹ albeit ‘having an undeniable expressive element’;Footnote ³² quoting Robert Post, they noted that the speech of a search engine ‘is not a form of social interaction that realizes First Amendment values’.Footnote ³³ Between the ‘naysayer’ and the ‘advocates for constitutional coverage’, using Collins’ and Skovers’ terminology,Footnote ³⁴ Grimmelmann has claimed that neither the editor nor the conduit model properly capture the actual role of a search engine, which is, in fact, that of an advisor.Footnote ³⁵ Acting as advisors, search engines engage in socially valuable speech that receives First Amendment protection; but search results constitute protected speech because ‘they are valuable instrumentally rather than expressively’ and not because they should be categorically protected.Footnote ³⁶ Only Benjamin went beyond the mere domain of search engines to investigate First Amendment coverage for algorithm-based decisions. He noted that ‘reliance on algorithms [never] transforms speech into non-speech’; by re-interpreting the Spence standard,Footnote ³⁷ he indicated that the key condition for algorithmic output to qualify as speech is the transmission of a substantive message to a listener that can recognise it.Footnote ³⁸

The US Supreme Court only very recently had the chance to add its voice to the debate on the conferral of speech rights to social networking platforms while they are performing content moderation.Footnote ³⁹ In Moody v NetChoice the Court found that when online platforms decide which third-party content their feeds will display or how the display will be ordered and organised, they engage in expressive choices and, therefore, receive First Amendment protection.Footnote ⁴⁰ The judgment seems to imply that the exercise of editorial judgement that is part of platforms’ free speech rights does not conflict with the immunity from liability for third-party content granted by Section 230 of the Communications Decency ActFootnote ⁴¹ to interactive service providers. However, the paradox inherent in conferring free speech rights to (business) actors that have historically claimed to be neutral conduits of third-party information is still visible, just as it was ten years ago.

This paradox is even more visible in Europe, where in 2001, the EU lawmakersFootnote ⁴² immunised service providers from liability for third-party content, on the assumptionFootnote ⁴³ that they engaged in the performance of an activity of ‘a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored’.Footnote ⁴⁴ Therefore, the application of the safe harbours was made conditional upon the absence of any editorial control, which would have turned a mere service provider into a content provider.Footnote ⁴⁵ This is perhaps one of the reasons commentators and regulators in Europe have thus far paid limited attention to algorithmic speech:Footnote ⁴⁶ The conceptualisation of service providers as neutral intermediaries has precluded any reasoning regarding the existence of algorithmic speech,Footnote ⁴⁷ and the idea itself of an editorial activity (implied in the creation of speech) would have conflicted with this paradigm.

While US courts have had the opportunity to test this concept in relation to search engine results and, more recently, social media content feeds, European courts have paid comparatively less attention to this debate. It is only in the context of search engine autocomplete suggestions that a few domestic courts have (sometimes incidentally) questioned whether such output qualifies for constitutional coverage as speech. In this domain, a possible counterargument to the ‘no liability, no speech’ mantra could rely on the observation that whereas search engine results (like content feeds) return third-party content, autocomplete suggestions are search engines’ own content, as noted by the German Federal Court of Justice in 2013.Footnote ⁴⁸ In turn, the French Court of Cassation considered the status of autocomplete suggestions in two cases but failed to engage in a deeper analysis of their possible nature as speech.Footnote ⁴⁹

Another reason for the more limited focus of European courts on algorithmic speech may lie in the fact that both the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, similarly to most of the national constitutions, confer free speech rights to individuals (‘everyone’)Footnote ⁵⁰ in a more specific way that goes beyond the comprehensive prohibition on abridgment of speech at the heart of the First Amendment.Footnote ⁵¹ This structural difference in the wording of the relevant provisionsFootnote ⁵² has inevitably influenced the degree of openness of the relevant jurisdictions to considering the existence of possible constitutional coverage for such an innovative concept as algorithmic speech.

The different framing of freedom of expression has also been reflected in the scholarship exploring this relationship. As previously noted, US scholars have extensively investigated whether algorithmic output can aspire to some constitutional coverage, perhaps driven by a ‘First Amendment expansionism’Footnote ⁵³ that has led some authors to question if free speech is now living a new Lochner era;Footnote ⁵⁴ in a different vein, European commentators have primarily focused on the possible application of algorithmic technologies to the performance of tasks with an impact on freedom of expression, such as content moderation.Footnote ⁵⁵ The latter perspective mirrors the understanding of AI as a technology that may pose new threats to freedom of expression rather than as a technology that opens new avenues for that freedom.

Against this background, it is necessary to shift from the speaker’s perspective to that of the listener to determine whether AI-generated content can aspire to constitutional coverage as speech. It should come as no surprise that, once again, the question first raised the interests of US scholars.Footnote ⁵⁶

Algorithmic speech and generative AI speech: the right to speak

Having examined the current state of knowledge regarding the constitutional coverage of the forms of algorithmic speech that preceded the advent of AI systems, it is now time to focus specifically on generative AI and to delve into the two perspectives under which AI-generated content could be considered speech; the investigation into the two distinct aspects of the right to speak and the right to receive information will facilitate the identification of the existing grounds for constitutional coverage of generative AI output.

At both global and local levels, freedom of expression is, first and foremost, the right of individuals to disseminate thoughts and opinions without constraints;Footnote ⁵⁷ thus, it is a right of the speaker.

If the scope of freedom of expression were limited to the right to speak, generative AI output might be prevented from receiving constitutional protection. A ‘killer argument’ in this respect could lie in the impossibility to find a ‘holder’ of the right to whom the content can be attributed, that is, a speaker.

Yet, the (apparent) lack of a human speaker does not seem to place an insuperable obstacle to conceptualising a freedom of expression coverage for AI-generated content.

Massaro, Norton and Kaminski, in a far-sighted 2017 pieceFootnote ⁵⁸ exploring the (at the time) future challenges of strong AI (a broader category including generative AI), found that extending free speech rights to AI speakers would be consistent with the traditional free speech ‘positive’ justifications, namely: democracy and self-governance, marketplace of ideas and autonomy.Footnote ⁵⁹

In this way, they showed that First Amendment protection is agnostic to the human nature of the speaker since it is the existence of speech (rather than, and regardless of, a speaker) that truly matters. In fact, US courts found no impediment to qualifying legal persons, such as corporations, as holders of free speech rights.Footnote ⁶⁰ This conclusion was perhaps facilitated by the wording of the First Amendment, which is centred on the prohibition of any abridgment of speech by the government. The First Amendment does not identify individuals as the sole holders of free speech rights, whereas Article 10 of the European Convention on Human Rights and Article 11 of the Charter of Fundamental Rights of the European Union state that ‘everyone’ is entitled to freedom of expression. However, the case law of the European Court of Human Rights has found that legal persons, particularly in the media industry, also qualify for protection under Article 10.Footnote ⁶¹ Similarly, the European Court of Justice has extended some of the rights enshrined in the Charter to legal persons, although no precedent specifically addresses freedom of expression.Footnote ⁶²

A possible solution that is often discussed in the context of algorithmic speech is to attribute the output of generative AI to the programmers. As a sort of fictio juris, such a solution could potentially accommodate the need for a human speaker if deemed necessary, while at the same time being consistent with the attribution of speech rights to non-human speakers, such as corporations.

However, what makes AI systems truly unique and disruptive is their ability to learn from input data how to return output, such as predictions, content, recommendations or decisions that can influence physical or virtual environments.Footnote ⁶³ As clearly stated in Recital 12 of the EU AI Act, what differentiates AI systems from simpler, traditional software systems or programming approaches is their capability to infer. This also marks an important difference compared to systems based on rules defined solely by natural persons to automatically execute operations, like the most common software programmes. It is precisely because of the underlying machine learning and knowledge-based or logic-based approaches that AI systems can go beyond the performance of predetermined tasks. Therefore, even if one were to consider whether AI output could be attributed to system programmers as their speech, this approach might prove pointless; determining a definitive ‘speaker’ would be practically impossible as these systems can deviate from the original input provided by programmers and produce output with a degree of ‘autonomy’.

The difficulties of identifying a ‘speaker’ (whether human or non-human) may, therefore, prove to be an argument to decline constitutional coverage for generative AI output.

But even if we were able to identify ‘AI speakers’ and to confer speech rights to entities other than humans, is the speaker the correct angle from which to look at the constitutional coverage of ChatGPT output?

Some of the scholars who have recently ventured into the status of generative AI output have emphasised the importance of a qualified connection between the algorithmically generated content at hand and the input of the speaker (i.e. algorithm owner).Footnote ⁶⁴ Benjamin, for example, tried to adapt and recontextualise the Spence test developed by the US Supreme Court,Footnote ⁶⁵ which requires a substantive message that is ‘sendable and receivable’ and that the speaker ‘chooses to send’.Footnote ⁶⁶ Blackman, in turn, put the ‘nexus that the algorithmic outputs have with human interaction’ at the heart of the relevant constitutional inquiry.Footnote ⁶⁷ Wu’s mentioned assertion of a functionality doctrine also draws boundaries between what constitutes speech and what does not.Footnote ⁶⁸ In their Robotica, Collins and Skover appealed to a ‘new norm of utility’ to grant coverage and protection to robotic speech that a receiver experiences as ‘meaningful and potentially useful or valuable’;Footnote ⁶⁹ in a nutshell, they recognise intention-less free speech as ‘at the interface of the robot and receiver’.Footnote ⁷⁰

This variety of views has so far exclusively emerged in US scholarship, and it reflects the challenges inherent in adopting the perspective of the speaker to develop a coherent conceptual framework for the constitutional coverage of generative AI output. Even if scholars like Kaminski have found the conferral of free speech rights to ‘AI speakers’ to be consistent with the traditional positive free speech theories, this essay advocates for another justification. This call for a different rationale depends, first, on the technical aspects of the most advanced generative AI, which would make the search for a speaker (whether human or not) rather uncomfortable and uneasy,Footnote ⁷¹ if not impossible, considering the black box effect.Footnote ⁷² But in addition and above all else, the call rests on the need for a better angle than that of the speaker to discuss the constitutional coverage of generative AI output.

This does not mean that the problem of determining the existence of a speaker and defining whether the speaker is human or not is unworthy of careful legal consideration; but, as noted by Kaminski, ‘a government that censors a political novel written by an algorithm is as problematic from the perspective of a reader as a government that censors a political novel written by Tolstoy’.Footnote ⁷³ This observation mirrors an essential switch from the angle of speakers to that of listeners, where ‘what matters’ is ‘whether the work reads as speech to those who encounter it’.Footnote ⁷⁴

Generative AI and the individual’s right to receive information

The right to speak is not the only component of freedom of expression, which also protects the right of everyone to receive information. This peculiarity is consistent with both the rationale that states should refrain as much as possible from interfering in the public sphere, no matter whether an individual is considered as a speaker or a listener, and with the existence of positive obligations on states to foster media pluralism, obligations that go beyond a purely negative understanding of free speech.Footnote ⁷⁵

The question, then, is whether the existence of a right to receive information implies that AI-generated content is also protected speech; and if so, does this shift to the listener’s perspective present fewer conceptual difficulties than the speaker’s perspective in framing constitutional coverage?

Lessons from cyberspace

To elaborate on this perspective, it is key to recall how the birth of cyberspace raised similar issues in the late 1990s. As cyberspace became popular, scholars began to discuss the impact of this technology, especially on freedom of expression. In its earlier days, the new digital world looked, on the one hand, like a ‘promised land of freedom’,Footnote ⁷⁶ yet on the other hand, the unique nature of cyberspace could facilitate conduct such as violations of privacy, defamation and copyright infringement. In the US, the unexpected proliferation of cyberporn soon became a major problem, which prompted Congress to legislate to protect minors from harmful content. These measures were challenged by civil society organisations, which saw them as an attack on Internet freedom, and were very strictly reviewed by the US Supreme Court beginning with the landmark case of Reno v ACLU. Footnote ⁷⁷

In such circumstances, it was easy to understand that not every human activity occurring in cyberspace amounted to an exercise of freedom of expression, despite the initial ‘illusion’ of a realm where everything was ‘freedom’,Footnote ⁷⁸ a myth fuelled by Barlow’s famous Declaration of Independence of Cyberspace.Footnote ⁷⁹ It became clear that there was no general and necessary equivalence between the medium (i.e. the Internet) and the most important freedom that could be exercised on that medium.Footnote ⁸⁰ In terms of constitutional coverage and protection, it is the content that ultimately matters. The rise of cyberspace and the subsequent regulatory developments have made this point undisputed: despite the fact that the courts have featured different approaches to freedom of expression in the digital ageFootnote ⁸¹ (sometimes emphasising the potential for the exercise of such a paramount right in the new digital realm,Footnote ⁸² sometimes focusing more cautiously on the risks its exercise poses to other fundamental rights and interestsFootnote ⁸³), the mere use of the Internet does not necessarily amount to the exercise of a right to speak.

Now that a new technological revolution is taking place, AI can perhaps be seen in a similar vein as another medium through which constitutional freedoms can be exercised.

The US perspective

From the perspective of information recipients, a restriction on freedom of expression occurs when the government obstructs their ability to access certain content. Since freedom of expression is not an absolute right, such restrictions are not inherently unconstitutional, but they necessitate a justification and must be proportionate to the objective pursued. However, it is precisely in the assessment of the constitutionality of potential restrictions that differing standards are applied in the legal systems of the US and Europe.

In the US, the First Amendment does not explicitly mention the right of individuals to receive information. Instead, it generally focuses on the prohibition of any abridgment of speech. However, as noted by the scholars who have investigated the relationship between AI and freedom of speech,Footnote ⁸⁴ the perspective of the recipient of information nonetheless plays a key role.Footnote ⁸⁵

The idea that individuals are afforded the widest possible range of perspectives or the greatest extent of pluralism of information is a particularly appealing concept in the US, where freedom of expression – especially in the digital age – is still predominantly shaped by the metaphor of the free marketplace of ideas.Footnote ⁸⁶ While it is genuinely supportive of a pluralism of ideas and opinions, this view of freedom of expression is sceptical of any governmental interference. Although some commentators have challenged the relevance of this metaphor in the context of the digital sphere,Footnote ⁸⁷ US courts have consistently upheld a broad interpretation of the scope of protection granted by the First Amendment,Footnote ⁸⁸ which has resulted in the presumption of constitutional impermissibility of content-based regulation of speech.Footnote ⁸⁹

Given this background, the free flow and confrontation of ideas and opinions, which are ideally pursued by the free marketplace metaphor, could be undermined by provisions that, for example, would place restrictions on the ability of generative AI to produce certain output. The problem is not the restriction, however, but rather its scope and justification.

Prominent free speech scholar Cass SunsteinFootnote ⁹⁰ has recently delved into the permissibility of such restrictions. As the Supreme Court made clear in its case law, content-based restrictions are more challenging for freedom of speech, as they likely (albeit not necessarily) result in viewpoint discrimination. Consequently, they are subject to strict scrutiny, whereas the constitutionality of content-neutral restrictions is generally assessed based on intermediate or mid-level scrutiny.Footnote ⁹¹

In Sunstein’s view, as with any other content-based restrictions, measures that interfere with generative AI’s ability to produce certain output (e.g. content critical of political majorities) and that result in viewpoint discrimination should be presumed to be contrary to the First Amendment.Footnote ⁹² If not, lawmakers would have a truly unique opportunity to interfere with the exercise of free speech: for example, by limiting what large language models can ‘say’, governments would be able to influence what individuals can find, see and read on ChatGPT, that is, the information they can receive.Footnote ⁹³

This approach is consistent with the reasoning of the Supreme Court in Reno v ACLU,Footnote ⁹⁴ its first cyberlaw precedent. The Court highlighted that ‘as a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it’.Footnote ⁹⁵

The solution endorsed by Sunstein does not exclude important consequences. First, the constitutional coverage of generative AI output under the First Amendment as part of the individual’s right to access information does not preclude the adoption of legitimate restrictions on the use of these systems that are inherent to the medium. Such limitations might depend on circumstances rather than on the content. Among possible content-neutral limitations, Sunstein includes the example of a ban on the use of technology imposed by academic institutions in the context of examinations.Footnote ⁹⁶ These content-neutral restrictions would be dependent on the protection of a significant public interest.

Moreover, and consistent with the latest finding, the fact that the content created through generative AI enjoys constitutional coverage does not mean that every output will necessarily receive protection.Footnote ⁹⁷

Looking at the problem from the listener’s perspective with the ‘support’ of the predominantly negative view of the First Amendment adopted by the Supreme Court, it turns out that the US legal system provides solid grounds to treat AI-generated content as speech. This framing captures what is, in fact, the most common source of concerns in the digital age: that illiberal governments fulfil their desire to suppress speech by limiting the ability of individuals to access content, for example, under the guise of fighting disinformation. The negative view of freedom of speech is consistent with the widespread distrust of governments, which are seen as ‘bad actors’.Footnote ⁹⁸

The adoption of this approach does not strip validity from the justification offered by positive free speech theories for ‘AI speech’. But the negative perspective offers the advantage, in the words of Massaro, Norton and Kaminski, of a shift ‘from asking whether a particular activity is speech to asking whether the government intends to target speech’.Footnote ⁹⁹

Finally, this perspective succeeds in extending free speech coverage to generative AI output without engaging in any complex and disputable attribution of speaker’s rights. As Sunstein noted, when the Supreme Court found content other than the speech of individuals, such as video games, to be covered under the First Amendment, it did not imply that the latter had per se constitutional protection. Rather, such protection applies to the individuals who engage in video games. The rationale, as articulated by Volokh, Lemley and Henderson, is that generative AI content qualifies as speech ‘because of the First Amendment rights of those who would receive the speech, whether or not AI companies’ own free speech rights are implicated as well’.Footnote ¹⁰⁰

The European perspective

The European understanding of freedom of expression differs from that of the US legal system, among others, due to a more balanced relationship among the various fundamental rights protected in the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. This difference also reflects the value attached to freedom and dignity in the respective jurisdictions,Footnote ¹⁰¹ as evidenced by some early cyberlaw cases.Footnote ¹⁰²

While both the Charter and the Convention stand out as key provisions, it is through the lenses of Article 10 of the Convention that one can obtain a more insightful perspective on the European understanding of freedom of expression. For the purposes of this analysis, it is therefore adopted as the paradigm of this right in Europe – also because of its long-standing influence as a general principle of EU law and the consistency clause under Article 52(3) of the Charter, which fostered the alignment between the case law of the European Court of Human Rights and the European Court of Justice on freedom of expression.

Article 10 of the Convention (like Article 11 of the Charter) does not model freedom of expression as an absolute right, but it does reflect a less suspicious attitude towards governments than does the First Amendment – like various national constitutions, it primarily focuses on the rights conferred to individuals. These include the right to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers.

Therefore, in Europe freedom of expression is also afforded multifaceted coverage, extending not only to those who speak but also to those who listen. The question of whether the right to receive information implies a generalised right to ‘proper information’ (or ‘not to be disinformed’), which is information that meets certain quality standards, remains open to debate, though. This construction of the right to receive information might not only validate measures aimed at countering disinformation but also impose positive obligations on the contracting states to actively intervene.Footnote ¹⁰³ To date, the case law of the European Court of Human Rights has not directly addressed this point, except for a few cases concerning pluralism in public service broadcasting and access to government information.

The freedom to receive information has also played a significant role in the domestic case law of some constitutional courts on the concept of pluralism.Footnote ¹⁰⁴ For instance, the Italian Constitutional CourtFootnote ¹⁰⁵ relied heavily on the right to receive information, which is implicit in Article 21 of the Italian Constitution,Footnote ¹⁰⁶ to require the legislature to implement adequate safeguards to ensure media pluralism; likewise, the never-ending series of judgments of the German Federal Constitutional Tribunal concerning the national public service broadcasting is deeply rooted in Article 5 of the Basic LawFootnote ¹⁰⁷ in affording protection to viewers and listeners.Footnote ¹⁰⁸

Against this background, scholars such as de VriesFootnote ¹⁰⁹ have pinpointed the ‘passive side’ of freedom of expression as the most suitable option to provide protection to generative AI output. As she pointed out,Footnote ¹¹⁰ the language of paragraph 1 of Article 10 of the Convention refers to the relevant rights (human rights, indeed) as applying to ‘everyone’, thereby implying that the fundamental right to freedom of expression can only be attributed to individuals. In her view,Footnote ¹¹¹ although the European Court of Human Rights has broadly interpreted the term ‘everyone’, encompassing legal persons under exceptional circumstances,Footnote ¹¹² extending it to AI systems would be at odds with Article 35(3) of the Convention, which stipulates that applicants must possess the status of victims of an infringement. Accordingly, the speaker’s perspective would not be the most well-suited to provide coverage for AI output.Footnote ¹¹³ As noted in the analysis of the right to speak, the lack of a human speaker may not be an unsurmountable obstacle to constitutional coverage; however, the perspective of the speaker may be misguiding, and the listener’s standpoint may more accurately capture the sense of extending constitutional coverage to generative AI output.

The European Court of Human Rights has addressed violations of the right to receive informationFootnote ¹¹⁴ on various occasions. The Court ruled on the compatibility with Article 10 of the Convention of measures taken by national authorities consisting of the blocking of certain websites. In Cengiz v Turkey,Footnote ¹¹⁵ the Court determined that the complete blocking of YouTube in Turkey, ordered in the context of a criminal trial to prevent access to ten webpages, was incompatible with Article 10. The applicants were Turkish law professors who complained about the overbroad effects of the blocking order, which, in their view, interfered with their right to receive (and impart) information and ideas. It is noteworthy that the Court did not dispute the status of the applicants as victims, even though they were not the target of the blocking order, which had been adopted without being prescribed by law. In its case law concerning the blocking of the Internet, the Court has placed particular emphasis on the impact of collateral effects on Internet users, which may include the impossibility of accessing significant sources of information.

Similarly, the Court has emphasised the pivotal role of audiovisual media (radio and television) as a conduit for the dissemination of information and ideas on matters of public interest, a function that is arguably as influential as that of the press.

In considering the role of the press in society, the Court has pointed out that its responsibility is particularly significant in light of the right of individuals to receive the information it imparts.Footnote ¹¹⁶

The Court also clarified that the right to receive information is not confined solely to matters of public concern; under certain conditions, it may extend to cultural expressions and pure entertainment.Footnote ¹¹⁷

Furthermore, the Court underscored that in the context of the public broadcasting service, contracting states bear a responsibility to guarantee ‘that the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country’.Footnote ¹¹⁸ Of course, it remains debatable whether this could give rise to positive obligations for contracting states to prevent or counter disinformation, including in the context of generative AI output. In fact, the Court made these remarks to stress the role of the state as ‘the ultimate guarantor of pluralism’,Footnote ¹¹⁹ for example, in the shaping of the media system or public service broadcasting. Similarly, the Court recentlyFootnote ¹²⁰ emphasised the key role of accuracy and reliability of the information provided by public authorities for the effectiveness of the individuals’ right of access to government information.Footnote ¹²¹ But the only general claim of a ‘right of the public to be properly informed’ came in the Sunday Times v UK case back in 1979; as noted by Pentney, ‘the qualifier disappeared in subsequent cases’.Footnote ¹²² So far, then, a right not to be disinformed has been conceptualised only as part of the right of access to information from public authorities.

Given the specific structure of Article 10 of the Convention, the Court’s case law has focused more on the specific conditions that could on a case-by-case basis justify the relevant limitations. Thus, any measure seeking to limit the ability of generative AI to ‘say something’, thereby impacting the right of individuals to receive such information, could theoretically be reviewed by the Court under the Article 10-based test. In the end, this would be no different from the review engaged in by the Court for restrictions specifically concerning, for example, online speech.

What matters is speech, not the medium

A comparative analysis of the First Amendment of the US Constitution and Article 10 of the Convention reveals that despite different understandings of freedom of speech, there is no apparent reason to exclude AI-generated content from constitutional coverage. However, this does not imply that every use of generative AI systems should amount to speech.

Given that coverage does not necessarily imply protection,Footnote ¹²³ the existence of constitutional coverage would not prevent states from legislating on this matter, for example, by requiring that generative AI output not consist of illegal content, such as defamatory statements, or by banning the use of large language models in specific contexts, such as school examinations.

However, in both the US and European legal systems, such measures must pass a First Amendment or Article 10 of the European Convention of Human Rights scrutiny based on their impact on the right to receive information from the public. This conclusion should not be affected by the absence of a speaker as a natural or legal person to whom the exercise of freedom of expression can be attributed.

A tale of two paradigms

If there is room to claim constitutional coverage for AI artifacts, an intertwined question concerns the applicable liability regime for illegal content produced by such systems. This point is worth exploring to understand the possible implications on freedom of expression. As noted, in pre-AI forms of ‘algorithmic speech’, such as search engine results, the fact that the operators of the relevant services (e.g. search engine providers) were framed as neutral conduits without any editorial control was seen as an argument depriving their output of any relevance as free speech.Footnote ¹²⁴ However, in a recent judgment concerning another type of algorithmic speech (that of social networking platforms), the US Supreme Court seemed to imply that holding free speech rights does not per se conflict with the role of online intermediaries.Footnote ¹²⁵ The point is thus worth further investigation with respect to generative AI output.

Legal systems distinguish between two possible actors in the digital sphere: service providers and content providers.Footnote ¹²⁶ What differentiates the latter from the former is generally the existence of an editorial role, which service providers lack. This is the reason jurisdictions such as the US and the EU have established liability exemptions for third-party illegal content that service providers host or transmit, although to a (very) different extent. As the case law, for example, of the European Court of Human Rights illustrates, the application and enforcement of the norms on moderation and liability for third-party content against intermediaries bear key implications for freedom of expression.Footnote ¹²⁷

A key question for understanding the impact of generative AI on the public sphere concerns the applicability of these rules to digital artifacts and their ‘creators’. The fact that generative AI output receives constitutional coverage may have key implications for the ability of lawmakers to require a certain type of content moderation from the providers or deployers of these systems. Once again, disinformation provides an example of the challenges that AI operators may encounter in content policing, most notably when it comes to content that, although harmful, is not necessarily illegal.

Both the US and the EU legal systems have regulated the role and responsibilities of online platforms, which reflects the relevant understanding of freedom of expression. However, at least prima facie, neither providers nor deployers of generative AI systems seem to fit into the category of service providers given that some characteristics suggest their editorial role. Unlike service providers, AI systems do not merely process third-party content. On the contrary, they contribute to produce content that has never been created by third parties.Footnote ¹²⁸ One notable difference, then, is that generative AI systems do not return merely user-generated content as output. The following sections will explore the existing content moderation frameworks in the EU and in the US with a view to understanding whether their application to generative AI output would be desirable from the perspective of freedom of expression.

Online content moderation in EU law

Under EU law, online content moderation is now governed by the Digital Services Act,Footnote ¹²⁹ a regulation that entered into force in 2022, replacing the pre-existing E-Commerce Directive, which dated back to 2001. While the Digital Services Act has preserved the two key pillars of the framework once enshrined in the E-Commerce Directive – namely the absence of a general monitoring obligation and the safe harbour liability regime for online intermediaries in relation to third-party content – it has shifted away from the one-size-fits-all approach behind it, acknowledging the inherent and increased complexity of digital services.Footnote ¹³⁰ The rationale behind the Digital Services Act is that online intermediaries may take different shapes, depending on the services they provide, and therefore pose different levels of risk to fundamental rights and public interests. The regulation thus operationalises a risk-based approach,Footnote ¹³¹ by differentiating four categories of services – namely, intermediary services, hosting services, online platforms, and very large online platforms as well as very large search engines – and imposing obligations that match the role, size and impact of digital services.Footnote ¹³² Hosting providers – a category that includes the most impactful online platforms, such as social networks – do not bear liability for third-party content unless they fail to comply with a notice-and-action mechanism that largely reflects the notice-and-take down procedure established at the time by the E-Commerce Directive.Footnote ¹³³ Coming into being in 2022, the Digital Services Act captured a profoundly changed shape of cyberspace compared to its early stages, which were the main reason behind such a minimal regulation as the E-Commerce Directive.Footnote ¹³⁴ Such transformation was mainly driven by the rise of online platforms, which more and more act as ‘digital oligarchs’. This evolved background also affected the goals of the Digital Services Act, which – to be effective – not only targets illegal content but also focuses on harmful content. In particular, the Digital Services Act acknowledges that ‘very large online platforms and very large online search engines can be used in a way that strongly influences safety online, the shaping of public opinion and discourse, as well as online trade’.Footnote ¹³⁵ Accordingly, it subjects the providers of very large online platforms and very large online search engines to specific obligations to assess the systemic risk ‘stemming from the design, functioning and use of their services, as well as from potential misuses by the recipients of the service’Footnote ¹³⁶ and to take appropriate risk mitigation measures.Footnote ¹³⁷ The Digital Services Act identifies four categories of systemic risks that providers of very large online platforms or very large online search engines have to assess, including the risks concerning ‘any actual or foreseeable negative effects on democratic processes, civil discourse and electoral processes, as well as public security’Footnote ¹³⁸ and ‘any actual or foreseeable negative effects in relation to … the protection of public health and minors and serious negative consequences to the person’s physical and mental well-being’.Footnote ¹³⁹ Therefore, disinformation is a key concern for EU lawmakers and the Digital Services Act has provided some responses against the dissemination of content that, albeit not illegal, is considered harmful.Footnote ¹⁴⁰ This trait consistently echoes the efforts of the European Commission on the Strengthened Code of Practice on Disinformation, recently integrated into the framework of the Digital Services Act, which endorses codes of practice among the applicable risk mitigation measures.Footnote ¹⁴¹

Therefore, while the Digital Services Act aims to promote intermediaries’ accountability and increase transparency in content moderation, it does not mean to incentivise censorship. It also does not establish any general monitoring or active fact-finding obligationFootnote ¹⁴² and exonerates hosting providers from liability unless they have actual knowledge or awareness of illegal content and fail to expeditiously act to remove it.Footnote ¹⁴³

The combination of measures provided by the Digital Services Act is intended to fully equip the EU legal system in the fight against both illegal content and harmful content, such as disinformation.Footnote ¹⁴⁴ However, this important achievement could now be undermined by the emergence of a truly disruptive technology such as generative AI, something the legislators could not have imagined at the time of drafting the Digital Services Act. It is indisputable that the new rules were not meant to govern the creation of content by generative AI, as these systems do not fall within its scope of application.

However, while acknowledging that the Digital Services Act was not intended to cover AI systems, Botero ArcilaFootnote ¹⁴⁵ has proposed an interpretation that would extend the applicability of some of its provisions to at least large language models.

This conclusion is supported by a broad constructionFootnote ¹⁴⁶ of the notion of online search engines established by the Digital Services Act:

By extensively interpreting this notion, some similarities can be found between the category of online search engines and that of large language models. The operation of both services depends on the initial query entered by their users and is aimed at retrieving information based on the input keywords.Footnote ¹⁴⁸ Both services can return results in any format in which the information related to the requested content can be found. This feature may render it irrelevant that large language models do not provide any third-party content, but rather, contribute to its creation.

According to Botero Arcila, the fact that the definition of online search engines is agnostic to the forms in which a system delivers results may pave the way for directly applying some of the provisions of the Digital Services Act to large language models. This extension could have substantial effects in the case of large language models with a significant presence on the market, which could qualify as very large online search engines.

Of course, there are many ontological differences between search engines and large language models: it is not by chance that large language models can be integrated into search engine services.Footnote ¹⁴⁹ Large language models are less transparent than search engines due to their inherent opacity; nonetheless, they can perform better than search engines, which merely retrieve information from the Internet.

Thus, even though the Digital Services Act defines online search engines very broadly, theoretically offering some coverage for large language models, this was certainly not the voluntas legislatoris. After all, generative AI systems were almost unknown at the time the legislative process for the AI Act began, providing more evidence that they were not considered in the scope of the Digital Services Act. Having established that there is no solid basis for this interpretation, it is possible to discuss whether such an outcome would in any case be desirable and beneficial for freedom of expression.

As Botero Arcila has noted, treating large language models as online search engines for the purposes of the Digital Services Act would have two main practical consequences. I see these effects as a ‘carrot’ and a ‘stick’, whose combination may lead to interesting results.

The ‘carrot’: large language models would benefit from the application of the Digital Services Act by virtue of the extension of the liability exemption for illegal content under Chapter II for intermediary services.Footnote ¹⁵⁰

The ‘stick’: the extension of the Digital Services Act to large language modelsFootnote ¹⁵¹ would require the implementation of the risk assessment mechanisms under Article 34, if large language models with a significant presence in the market were considered very large online search engines.

With respect to the first consequence, various scholars have called for a selective extension of the Digital Services Act to generative AI systems. Hacker, Engel and MauerFootnote ¹⁵² have emphasised the importance of applying the provisions on content moderation, such as the notice-and-action mechanism, to generative AI. The extension of these measures beyond the original scope of the Digital Services Act would be very impactful with respect to services that are provided as standalone solutions.Footnote ¹⁵³ To the extent that generative AI systems are integrated into downstream services (such as caching and hosting services) that fall within the scope of the Digital Services Act, the practical consequences are likely to be quite limited, as such services are already subject to the liability exemptions and, in the case of hosting services, to the notice-and-action mechanism.Footnote ¹⁵⁴

Thinking about the impact of applying these rules to generative AI, it is precisely the reporting of content by users and trusted flaggers according to a notice-and-action mechanism that would make the adoption of the necessary corrective measures (by the large language model provider) possible. This mechanism would circumscribe to a pre-litigation phase the settlement of disputes depending not only on intentional manipulation but also on the inherent inaccuracy and fallacy of generative AI. Society also has an interest in taking advantage of AI technologies according to high quality standards, and such a goal demands adequate ‘training’ of AI systems,Footnote ¹⁵⁵ even in their deployment and use.

This conclusion may appear paradoxical if one considers generative AI as engaged in a genuinely expressive activity or having an editorial responsibility for the output they produce.

However, this assumption should be reconsidered given the technical features that characterise generative AI systems, in which the processing of a given output, while closely related to the input received in terms of both training data sets and user queries, can hardly be the result of a proper editorial activity. Like hosting and caching providers, large language models have neither knowledge of nor control over the content they make available, which, however, is not just a selection of third-party input, but rather something more like their own product.

If it is then difficult to equate large language models with online search engines or other service providers, it is equally hard to qualify them as purely content providers. Perhaps the fact that, as these systems themselves make clear in their disclaimers, generative AI may produce inaccurate results, the correction of which would require some technical steps, could make the notice-and-action regime under the Digital Services Act an appropriate solution to minimise mistakes. The notice-and-action mechanism could be a more flexible and consistent with the state-of-the-art alternative to direct liability for illegal content ‘made up’ by generative AI. Indeed, the reporting of illegal content allows the provider or operator of a generative AI system to take necessary action and improve the performance of the models. In the end, attaching legal relevance to the reporting of the produced output as inaccurate or illegal could facilitate legal certainty, marking what under the Digital Services Act is the actual knowledge or awareness standard, a condition that triggers some legal obligations for the service provider.Footnote ¹⁵⁶

Regarding the second practical consequence of the extension of the Digital Service Act to generative AI, that is, the application of the risk management obligations under Article 34, this requirement could reciprocate the application of the favourable content moderation regime. However, the AI Act, while silent on the application of the content moderation framework, provides some clarification (mostly through some recitals) on the intersection between the new regulation and the Digital Services Act. The AI Act recognises that AI systems and models can be integrated into downstream services, which include very large online platforms and very large online search engines (Recitals 118 and 119). Given this possible scenario, the AI Act acknowledges that the relevant providers of very large online platforms or search engines are likely to have already implemented the risk management framework for the purposes of compliance with the AI Act in the fulfilment of their obligations set out in the Digital Services Act.Footnote ¹⁵⁷ Recital 119 also adds that the Digital Services Act must be interpreted in a technology-neutral manner, further justifying that AI systems covered by the AI Act may be provided as intermediary services or parts thereof. This clarification is quite significant, as it may open an interpretive avenue for considering at least some generative AI systems to fall within the categories of intermediary services even when operated as standalone solutions.

Online content moderation in the US

Even in the US, defining the applicable legal regime for generative AI output seems to be far from an easy task. These difficulties are unsurprising given that Congress passed the Communications Decency Act, the first piece of legislation governing cyberspace, including the role and responsibilities of online platforms, in 1996.

Reflecting the paramount importance of freedom of speech in the US legal order, this provision aimed to relieve service providers from any consequence for engaging in content moderation, establishing a broad immunity from liability for third-party offensive materialFootnote ¹⁵⁸ and preventing them from being treated as speakers or publishers of third-party content.

However, this provision was passed when cyberspace was populated by a multitude of small virtual communities, and big tech companies were not yet on the scene. The current scheme of Section 230 of the Communications Decency Act does not provide any other option than the two in the alternative between information service providers and information content providers. So, generative AI systems will most likely fall into the scope of the latter category:Footnote ¹⁵⁹ in such a scenario, their providers would not enjoy the broad immunity from liability enshrined in Section 230.

For some time now, there has been a major debate in the US about whether Section 230 should be revisited. This provision, which has received both criticism and praise from scholars, still reflects a nascent understanding of cyberspace and its actors, which faced overwhelming developments over the following two decades. Courts have adapted their enforcement of the Section 230 immunity to the evolving digital environment, but it seems unlikely that this provision can be extended beyond its original scope to encompass generative AI systems. Scholars like Volokh have noted that ‘Congress didn’t make the choice to immunize companies that deploy software which itself creates messages that had never been expressed by third parties’;Footnote ¹⁶⁰ likewise, Section 230 does not immunise companies that have materially contributed to the alleged unlawfulness, as in the case of statements harming someone’s reputation that are made up by a software.Footnote ¹⁶¹ Against this view, it is argued that the output produced by systems such as ChatGPT is ‘entirely composed of third-party information scraped from the web’,Footnote ¹⁶² so that there is no creative activity that would transform the service provider into a content provider. However, the difficulties of applying Section 230 to something that in 1996 was unimaginable are quite visible.Footnote ¹⁶³

Amid the various challenges faced by Section 230 over nearly three decades is the question: Can the rise of generative AI pave the way for a reconsideration of the provision’s scope?Footnote ¹⁶⁴ And even if generative AI systems were conceptualised as information content providers, would there be room to discuss the possible consequences in terms of attribution of liability, for example, in the case of defamatory content?Footnote ¹⁶⁵

To answer these questions, it is worth recalling that when Congress passed Section 230 of the Communications Decency Act in 1996, it did so to strategically protect information service providers from stricter liability standards (for example, that standard applicable to publishers which was applied in some pre-Section 230 case lawFootnote ¹⁶⁶) in view of their vital role for the exercise of free speech rightsFootnote ¹⁶⁷ by individuals. Section 230 prevented service providers from being treated as speakers of information that they merely hosted or transmitted to eliminate the ‘specter of tort liability in an area of such prolific speech’,Footnote ¹⁶⁸ which would have obvious chilling effects. However, the purpose of this provision was not to discourage content moderation, but to promote it. As highlighted by Henderson, Hashimoto and Lemley, ‘one of the original purposes of Section 230 was to encourage proactive efforts to filter content by changing legal rules that got you in trouble if you intervened’.Footnote ¹⁶⁹ This legal paradigm was simply found to be more consistent with their role as ‘enablers’ of free speech.

Similar considerations could now come into play in assessing which legal regime is more appropriate with respect to illegal content produced by generative AI: Henderson, Hashimoto and Lemley have emphasised that AI companies could now face a similar paradox, where those ‘who put their head in the sand may be immune, but those who intervene to make things better may lose immunity’.Footnote ¹⁷⁰ Should we expect a Section 230-like provision for generative AI systems?

The way forward

In the absence of crystal-clear legislative answers, the applicability of existing content moderation and liability rules in the context of generative AI will likely depend on judicial activism in potential future litigation. Although some scholars have suggested that the Digital Services Act and Section 230 of the Communications Decency Act could be broadly interpreted in a way that would allow the extension of the relevant provisions to generative AI systems (or to at least some of them), the current framing of these provisions does not make them very well suited to such innovative services. However, these outcomes may be partially desirable, most notably to the extent that they help strike a balance between the need to govern the early stages of this technology without hampering it and the need to promote a development of technology consistent with the protection of fundamental rights.

Some of these mechanisms could also be beneficial from a law and economics perspective and indirectly facilitate more competition in the market.Footnote ¹⁷¹ Currently, the generative AI market is predominantly populated by leading tech companies that are well positioned to bear the costs of potential litigation and the negative consequences resulting from the operation of their services. Strict liability rules, for example, may discourage startups from entering this market due to a high risk of litigation, which could constitute a significant barrier. In some ways, the rationale may be similar to the legislative option Congress took in 1996 when it enacted Section 230 of the Communications Decency Act: to remove a source of risk (that of being held directly liable as a publisher) that could ultimately discourage service providers from entertaining a business with key implications for fundamental rights. This not-so-unintentional lack of regulation may have seemed like a strategic option at the time, but it came at a significant cost in the medium term. Could a similar rationale guide lawmakers now, at such a crucial time for future developments in AI? One possible objection is that the AI market is already dominated by large technology companies, whereas at the time of the Communications Decency Act, none of these players had yet emerged.

However, given the still limited margin of accuracy of AI output, holding providers and/or deployers directly liable for any illegal content without any safe harbour regime could have chilling effects and, ultimately, undermine innovation in the relevant market. This is a problem that the AI Act generally addresses only to a certain extent: but will this be enough?

Finally, turning back to Europe, it should not be underestimated that, under EU law, the application of the content moderation regime enshrined in the Digital Services Act (i.e. liability exemptions combined with the notice-and-action mechanism) would come with the obligation to comply with accountability measures and other requirements, most notably in the case of services with a significant market presence that could qualify as very large online platforms or very large online search engines.Footnote ¹⁷² These risk mitigation measures, established by Article 34 and Article 35 of the Digital Services Act, may have a significant impact, among others, on the fight against disinformation to the extent its spread would amount to a systemic risk likely to affect the EU’s fundamental rights and values. Therefore, the application of a more lenient liability regime for the output generated would not necessarily make generative AI operators less accountable and undermine the contrast between illegal and harmful content, which is at the heart of the Digital Services Act; on the contrary, it could prove to a certain extent to be desirable and beneficial.