Just two weeks ago, my Free Speech Unmuted co-host Prof. Jane Bambauer (Florida) and I discussed Garcia v. Character Technologies. (Besides being a leading First Amendment scholar, Jane also teaches and writes about tort law.) I'm therefore especially delighted to pass along some thoughts from her on yesterday's decision in the case:
AI, Free Speech, and Duty [by Jane Bambauer]
The case against Character.AI, based on the suicide of a teenager who had become obsessed with his Daenerys Targaryen chatbot, produced an important opinion yesterday. Judge Conway of the U.S. District Court in Orlando declined to dismiss almost all of the plaintiffs' claims, and also refused "at this stage in the litigation" to treat AI or chatbot output as speech under the First Amendment. I think the opinion has problems.
Eugene has already laid out some of the reasons that the court's First Amendment analysis is flawed. (E.g., could the Florida legislature really pass a law banning ChatGPT from producing content critical of Governor DeSantis? Of course not.) I want to pile on a little bit—I can't help myself—and then connect the free speech issues to the analysis of tort duty.
Is Chatbot Output "Speech"?
The defendants (Google and Character AI) argued that chatbot output is protected speech, much like computer-generated characters in video games. The defendants made analogies to other expressive technologies that were once new as well. But the court found that these arguments "do not meaningfully advance their analogies" because the defendants didn't explain how chatbot output is expressive.
In the court's opinion, with an assist from Justice Barrett, chatbot output is not expressive because it is designed to give listeners the expression that they are looking for rather than choosing for them:
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