The Case for Protecting AI-Generated Speech With the First Amendment

The modern foundation of the free speech clause of the First Amendment is the concept of the marketplace of ideas. The notion comes from John Stuart Mill who first drew the analogy to a market where ideas compete freely with one another and people form their own judgments. The analogy was first noted in Justice Oliver Wendell Holmes' famous dissent in Abrams v. United States (1919) when he wrote, "The best test of truth is the power of the thought to get itself accepted in the competition of the market." This free and open market of ideas is considered vital to the function and preservation of democracy. As Holmes wrote in another famous dissent in United States v. Schwimmer (1929), "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought--not free thought for those who agree with us freedom for the thought we hate." Until recently, the Supreme Court had not cared much where those thoughts might come from, or whether their source must be human.