The Declaration In the Age of General Purpose AI

Michael McConnell: Great. The third session of the morning before lunch, I don’t know why we decided on, on on this odd schedule, but here we are. So we have one more panel, and then we will have lunch. And I’m very happy to welcome Alex Tsesis whom I’ve known, off and on for

Actually, w- we’re more or less conversation partners. I don’t think we’ve ever been on a platform together. But at various conferences for, I would guess, the last 25 years, we often find ourselves in the corner of the room talking about things. And the … my great advertisement for Alex is he’s interested in everything and is one of the least dogmatic people you’ll ever en- encounter.

He’s the d’Alemberte Distinguished Chair, my, that’s a great name in Constitutional Law at Florida State. And he’s t- taught and written on a number of different things. I’ll just mention the titles of some of his books, which give you a sense of his breadth. Free Speech and the Balance: For Liberty and Equality, colon, the Life and Times of the Declaration of Independence a- and others.

A- and he’s going to be in conversation with Anne Twitty, who is a fairly new colleague of mine over in the History department. We in the law school have very close ties to Stanford’s History department and she’s been such a- an asset over there. She’s a h- historian of of 19th century, mostly I think of anti- antebellum ni- US history with an emphasis upon slavery and the history of slavery, the history of the South and obvious

with an a topic of obvious pertinence that keeps coming up in panel after panel. Please join me in welcoming Professor Tsesis and Pro- Professor Twitty.

Alexander Tsesis: I’m grateful to Michael and to Bella Ryb for organizing this event, for inviting me, and for Michael’s friendship and just the opportunity to speak through very complex ideas since my very early work in the 13th Amendment. So many opportunities a-at conversation and so many times I… you come to mind as I think of your work in conjunction with mine.

So I’m very grateful to you for your friendship and for your long-term mentorship really. So I wanna discuss the Declaration of Independence’s relevance in the age of AI. The Declaration of Independence establishes the foundation of self-evident truths that underlie the principles of American constitutionalism.

The people whose general welfare, safety, and tranquility, the preamble to the Constitution guarantees, are natural persons who possess unalienable rights of life, liberty, and the pursuit of happiness. In a representative democracy, the ability to speak on public matters is an essential component of autonomous, intentional, and meaningful personhood.

In the age of generative AI, there has been a steady drumbeat from those who equate human communications with machine outputs. The claim that AI models will one day have super intelligence and therefore be worthy of First Amendment protections i- and even political rights, is constitutionally suspect To the contrary, the understanding of free speech through the historical lens of the Declaration of Independence and how that document imbues constitutional meaning precludes granting algorithmic models those entitlements that the nation’s founding document secured for natural humans.

The declaration remains today a key component for the development of constitutional meaning. This is not only because the document continues to be regularly recited at Independence Day celebrations in towns, cities, states, and in the nation’s capital. It’s rather that the document contains the kernels of the declarat– of the Constitution.

Those rights translate into constitutional principles that govern only humans. The framers created a system for governance and then, with the ratification of the Bill of Rights, provided certain guarantees, such as free speech and a free press, to the people. Those amendments to the Constitution sought to guarantee the general welfare for conscious human beings.

The modern computational devices were not even in the framers’ minds’ eye, nor was there even a concept of science fiction. Nor should free speech be extended to them despite their ability to inform listeners. And I should say that this is part of a much larger project. I’m writing a book on AI and the humanness of the Constitution.

And this is a c- a small portion of that project. The human qualification for speech covered under the First Amendment restricts its application to natural people. Proof of this appears in the text of the Declaration of Independence. Moreover, the broad political, historical, and traditional reading of the document indicates that it concerns the rights of consciously intentional human beings.

This perspective on the notion of free speech and its roots in the Declaration of Independence expresses how the American people, during the ratification of the First Amendment, understood it to apply to citizens who composed the newborn republic, the same people who bequeathed the grand project of deliberating on and advancing liberal equality for the common good to themselves and to future generations.

The principles of human social contractarianism followed the declaration’s initial recognition of the right of each of us to speak upon matters great and small for the advancement of welfare and happiness. The declaration’s reference to liberty, equality, and personal objectives guarantee intrinsically human-centered rights under the Constitution.

Sentience and consciousness are necessarily intrinsic to the people whose general welfare the Constitution provides for Those scholars who argue that AI models deserve free speech rights diverge from the long American history and tradition of inalienable equal rights as they are set out in the American constitutional firmament by the Declaration of Independence.

And the decades later that, that followed also in the statements that were made are clearly the ones that have to do with humans, for example, in the Bill of Rights. And these natural human endowments include the freedom of speech, which obviously is very critical and important as when it comes to G- GPAI, general purpose AI, which is the language that’s used by the European Union, general purpose AI, as opposed to strictly AI, which I think is too anthropomorphic.

Public discourse is a human endeavor that is not identical with algorithmic processing. It is nevertheless undeniable that AI systems produce understandable sentences. Litigants are already suing in federal court, challenging state regulations on AI technology. There is every reason to think that the trend of these opportunistic lawsuits will persist.

Granting First Amendment protections to large language models, LLMs, could lead to absurd results and significantly complicate legislative efforts to regulate AI transparency, safety, transferability, labeling, and data acquisition, retention, and marketing. More specifically, I aim to demonstrate that AI systems are not covered by the Declaration of Independence, which o- which i-in its reference to unalienable rights.

Therefore, syntactical operations of algorithmic models do not deserve safeguards of the Constitution specifically reserved to natural humans. Were the views of those who wish to expand free speech to computational devices to gain judicial traction, strict scrutiny analysis would apply to thwart state and federal efforts to regulate GPAI.

Such an outcome could eviscerate the natural rights reasoning of the Declaration of Independence and its foundational features as the cornerstone of the aspiration of the American democracy. I’ll begin today by demonstrating what I take to have been self-evident truths to Jefferson and the Second Continental Congress that the document applies exclusively to human beings.

To demonstrate the proposition, I will explore some early understandings of natural persons’ rights and the freedom of speech, which came to be guaranteed by the First Amendment. Having established the human core of civic rights generally and free speech in particular, I will then turn to the relevance of the declaration’s historical and traditional meanings to the understandings of contemporary First Amendment doctrine generally and its application to GPAI particularly.

Computational machines do not figure in the structure of government. They are mechanical devices that lack the basic elements of humanity, such as consciousness, the pursuit of happiness, equal status with other natural persons, and political personhood. They rather run on algorithms that are not autonomous decision-making processes.

Hence, contrary to recent claims of several scholars, Eugene Volokh, who’s not in the room th- and Mark Lemley, who was here at Stanford as well, Mathias Risi at Harvard, GPAI should not enjoy First Amendment coverage. The Supreme Court increasingly relies on originalist interpretation methodology References to historical practices and understandings figure prominently in cases dealing with a breadth of issues from free exercise of religion to firearms and abortion.

I’ve published a number of articles critiquing various historical shortcomings that riddle Supreme Court methodology of originalism. From my perspective, history is essential to the interpretation, but it should not be dispositive. Other judicial modalities for understanding the Constitution are also critical in interpretation.

They include structure, ethos, text, precedent, custom, natural law, and so forth, and they should play a role in this digital day and age. They inform meaning of the Declaration of Independence and of the Constitution. But for purposes of the lecture and the real-reality of the originalist model that the Court now follows, or the majority of the Court follows, presenting a historically tenable argument of how the Declaration of Independence should be understood is of critical importance and its particular effect or integration in the comprehension of the meaning of the First Amendment interpretation in the age of AI.

The document, though drafted in 1776, is not simply a time capsule into the thoughts of the framers of yore, but a firm articulation of intrinsic humanity of constitutional protections such as free speech and hence their applications to the machine machine GPAIs. And now I’m gonna turn now to the original the original meaning and the understanding that the Declaration of Independence was founded.

It was set in the terms of nationhood. Its first paragraph announces the right of the people to dissolve the bonds and bans which have connected them with others. Americans would henceforth gain sovereignty equal to that of other nations, but they would part ways with autocratic rule in favor of all important right of people to self-government.

The value of speech appears to emanate from the Continental Congress’s recognition of the need to show decent respect to the opinions of mankind by declaring the causes which impel them to separation. The founders relied on a sense of unalienable rights that were the attributes of humanity. As a contemporary to Thomas Jefferson wrote, “Freedom of thought in respect to the rights of humanity is perfectly innocent.

The freedom of speech when employed in the search of truth is not only beneficial, but it is absolutely necessary and equally the right of all men.” They justified the need to create a novus ordo seclorum, where rights were secure against arbitrary abuses of power. The authors declared not not only the enumerated rights, but that there were those that were inborn human traits.

They enumerated really just three the right to life, liberty, and the pursuit of happiness, but there were also these natural attributes that were much broader when it came to personhood. Yet there is much more to the Declaration’s condemnation than simply one that states something against autocracy.

It lists grievances that led to decisions to declare independence, stressing principles of political representation and judicial independence. Many of its contemporaries, such as Quaker Anthony Benezet, regarded the rights expressed by the Declaration of Independence to be just as much those of Europeans as those of enslaved Africans who were residing amongst them.

Benezet, one of the foremost of the Quaker luminaries, wrote in 1778 that a guarantee of human equality pertains to all inhabitants, irrespective of their race and class. The Declaration’s statements about people’s right to separate from Great Britain, Benezet wrote, apply to human nature in general, however diversified by color and other distinctions.

Nationhood, Benezet believed, was to benefit everyone, not just white men. That same year, Jacob Green, a pastor and a physician with close ties to Princeton University, then the College of New Jersey, delivered a sermon. Like Benezet, Green expostulated about the incompatibility of the declaration’s statements to human equality and the entitlement of liberty with the retention and promotion of slavery.

And three years later, David Cooper, another Quaker, published a wonderful column in a newspaper in which there were, … it was a newspaper column, but it was a newspaper article, I would say, with two columns. On one side, he had clauses of the Declaration of Independence, and particularly the second paragraph of it.

On the o- on the other side, he distinguished it from the violations of human rights that were implicit and in the Declaration of Independence and how they per- were perpetrated against per- persons from Africa. He wrote that he assailed slaveholders for their hypocrisy, and really the nation for its hypocrisy of these natural rights.

What’s more, many of the early republic’s luminaries, including Benjamin Franklin, James Wilson, Benjamin Rush, who signed the Declaration of Independence, and John Jay, they believed that slavery was incompatible with the ethos of the Declaration of Independence. Those pronouncements, which are so rich in their belief of equal human nature and freedom, I will argue later, are unmatched by machine learning models.

The principles of American nat- national equa- in identity, the principles of American national identity, including the country’s emphasis on the right of free speech, can only apply to natural people, not to computational machines. The abolitionist messages came from the heart. It was self-evident that all natural born people are created with certain unalienable rights.

The traits of humanity were those of life, liberty, and the pursuit of happiness. Their enumeration speaks to us all. They capture our insights about self and the right to equal social membership. The Framers conceived of governance as a social contract between individuals who join as equal members in communities that form sovereign states in order to better secure their natural rights. People are unlike any machine being constituted with constitutionally recognized inalienable rights.

By referring to the pursuit of happiness, America, while yet in its cradle, set the stage for future generations to advance civil rights and civil liberties, even though Mr. Jefferson and his American contemporaries failed to fathom all of its implications. In drafting the declaration, Jefferson worked in the milieu of eighteenth century political philosophers who understood happiness in context of the benefit enjoyed by members of societies.

Among the rights the declaration secured was free speech, which is intrinsic to human dignity and essential to an interactive community of equals where each can pursue happiness. Justice Brennan once explained that freedom of speech is itself at end because of the human community is in large measure defined by speech.

Freedom of speech is therefore intrinsic to individual dignity. Speech is tied directly to the people’s prerogative under the First Amendment to freely express themselves by petitioning to the government to, for a redress of grievances. Reminiscing about the declaration near the end of his life in 1825, decla– Jefferson wrote that his draft was neither aimed at originality of principle or sentiment, nor yet copied from any particular previous writing.

It was intended to be an expression of the American mind. All its authority rests then on harmonizing the sentiments of the day. He and his contemporaries understood speech was both a personal right and one essential to advancing the self-evident and un-unalienable and undeniable interests of newly formed sovereign states.

We should understand the American mind not as a figment of a machine, but a conscious and evolving set of norms, procedures, and powers that are necessary to the advancement of the people’s wellbeing. The American colonies were awash with ideas of natural rights to the freedom of speech and the press particularly.

And this firestorm was set out by the publication in seventeen twenty and seventeen twenty-three by John Trenchard and Thomas Gordon, two, two British authors of the hundred and forty-four Cato letters. Its authors extolled the importance of free speech to citizens, efforts to achieve government accountability, and so on.

The oft-reprinted Cato’s letter number fifteen asserts that without freedom of thought, there can be no such thing as wisdom and no such thing as public liberty without freedom of speech, which is the right of every man as far as by it he does not hurt or control the right of another. Cato’s letters were broadly influential and available in America throughout the revolutionary period

While the understandings of public discourse of those days was much different from ours, there was a national consensus on the right of freedom of speech as– that burgeoned through the grassroots movement that expanded from the colonies to states, and ultimately to a national movement, especially with the passage of the Declaration of Independence.

The idea of free expression was one that was at first limited to representatives in legislative bodies. Following the publication of Cato Letters, the newspaper columnists extended a more general idea of freedom of speech as essential to the Declaration of Independence from Great Britain, unalienable and inborn, a sentiment that ultimately received constitutional protection States that in, i-i, that published the d- their constitution some before even the r- the passage of the Declaration of Independence like Pennsylvania and Maryland and those later, like Massachusetts in 1780 or Rhode Island in 1790, passed laws and ratified constitution to sec- to safeguard the unalienable rights to secure the Declaration of Independence statements and included freedom of speech.

The precepts of 1776 were dominant in the early republic, more generally that the people had this intentionality and th- the people as it w- was ref- referring to conscious individuals who make up the social order and through public discourse guide its evolution t- as a composite sovereignty that is committed to advancing the common good for equals in pursuit of happiness.

The founding generation’s understanding of freedom of speech was undeniably associated exclusively with conscious natural humans and persons who participate equally in public discourse. This was picked up not only by the abolitionists of the day, those I mentioned, Benjamin Franklin John Jay, Benezet and others, but also it was something that continued by the those who spoke on behalf of human rights.

Particularly I’m thinking about William Lloyd Garrison in his Liberator and how often the Declaration of Independence comes up. This was the maj– one of the major, probably the major abolitionist papers that appeared in 1831 at first and continued on all the way through 1865, through the end of the Civil War, often in its pages by authors w- of various colors men and women would speak about the declaration’s value to humanity and its, it, the equal i-inherent rights that we have in it.

And these, this appeared both in, not only in the papers, but also in their speeches, in the pamphlets they published, in the books that they published. The abolitionist movement regularly cited to the De- Declaration of Independence as being a covenant that we have a promissory note, as Martin Luther King Jr. would later say. First wave feminists also very often referred to the Declaration of Independence. Obviously, we had this reference of the 1848 Declaration of Sentiments, Elizabeth Cady Stanton’s reassertion of the rights that were stated in the Declaration of Independence and expanding them to what it should have been from the beginning, which is to women.

And even the split that occurred between the National Woman’s Suffrage Movement and the American Woman’s Suffrage Association they continued, d-despite their differences amongst themselves as to what to pursue first, to continue to use the Declaration of Independence. The sixth president of the United States, who was at this point later on in Congress, John Quincy Adams, wrote that slave traders and slave breeders degraded the lofty stand upon which America placed itself with the adoption of the Declaration of Independence.

The original meaning of the declaration, whether as it was understood at the time of the founding of the s- or the s- years subsequently, when it culminated into the drive by radical Republicans to make it a part of the Reconstruction Amendments, has grounded the American people in equal humanity. The Declaration of Independence spelled out the basic parameters of republican form of government.

The generations who lived through the first and second founding understood the document to speak to intentional persons who possess equal unalienable rights. For groups such as abolitionists and feminists, the nation’s founding document set the gold standard of the Constitution. It d- of which it fell short with its slave-protecting provisions.

But it– the declaration continued to be this ideal, this bedrock of independence. The principles set by the Declaration of Independence create this unmistakable human foundation for democracy and constitutionalism. The document’s assertion about self-evident truths, about the social contractarian purposes of government instituted amongst men deriving their just power from the consent of the governed, plainly leaves democracy to conscious deliberation of natural persons.

America’s living tradition of open ex-expression, which was the central importance in the revolutionary founders to the revolutionary founders, should not be a simulacrum of the past, but continue to inform judicial interpretation of expressive liberties Any regulation of general purpose AI, GPAI, models faces a gauntlet of American First Amendment jurisprudence, which does not differentiate between speakers, at least when they’re human, and it relies on strict scrutiny i-for any sort of review of content-based regulation.

Where current case law is functionalist, nuance is required to understand the values of public discourse stemming from national commitments in 1776 and their continued vitality today. Democratic discourse was essential during the revolutionary period. Even prior to independence, colonists recognized the right to of expression to be intrinsic to citizenship.

The ideal of open debate about representative governance informed state constitutional guarantees of free speech. In 1776, the same year that the Continental Congress voted and adopted the dec- for and adopted the Declaration of Independence, the Pennsylvania Constitution recognized that the people have the right of freedom of speech and of writing and publishing their sentiments.

Therefore, the freedom of the press ought not to be restrained. The reference to the people’s sovereignty, a pla- a place atop government indicate that or- ordinary citizens were empowered with the privilege of voicing their views about matters of public concern. That statement was consistent with the com- co- common contemporary sentiment that the freedom of speech and the liberty of the press are the natural rights of every man, providing he doth not injure himself nor others by his conversations or publications.

Those who framed the ideals of the Declaration and the Bill of Rights regarded representative democracy to be essential to natural people to express their expectations and purposes of self-government. No one in the eighteenth century envisioned the right of freedom of speech ever being extended to machines.

The framers’ perspective on speakers and their communications were tied to the notion of self-government through representative institutions. The modern Supreme Court doctrine has erected significant barriers against federal and state legislative initiatives that would regulate AI. The Roberts Court’s expansion of judicial strict scrutiny to strike ordinary consumer protection laws complicates any effort to pass such laws that would require AI firms to take several regulatory pro- pro– to…

And I wanna just now for a second to take several regulatory proposals such as those that might be passed in the future, hopefully either in a state, but preferably at a federal level. Those would require transparency of AI firms about the data sets that they use. Those that would require AI firms to permanently label commu- computer-generated content other initiatives that might prevent real-time face identification and certify the safety of machine models.

The range of recent cases that struck down economic, safety, and health regulations characterize the Court’s approach to First Amendment in its current time. In Reed versus Town of Gilbert, the majority, for good reason, found a very poorly drafted signage ordinance to be unconstitutionally overbroad.

However, the majority went too far when it asserted that content regulations must always be reviewed through strict scrutiny analysis. Elsewhere, the Court struck a consumer protection law that required retailers to disclose hidden credit card cl- cl– surcharges. Another law the Court struck down was one that restricted robocalls by private marketers, and another that prohibited pharmacies from selling data about physicians’ prescription records Therefore, unless the court recognizes that natural persons ah, person speakers have special status derived from the foundational assumptions of the Declaration of Independence and the Bill of Rights, any legislative effort to restrict the use of deepfakes for political or commercial purposes, subliminal techniques aimed at deception and manipulation or bias are unlikely under current doctrine to survive First Amendment scrutiny.

Even the multi-member corporations, which of course, AI firms are ones that have natural persons on them. And these are composites of human decision-makers. They’re not AI models being that come out with these algorithmic outputs. I now turn to how the Declaration of Independence principles can help us evaluate arguments of several prominent scholars who argue in favor of one day granting superintelligent AIs political and free speech rights.

I will also respond to several anticipated counterarguments

Our first task is to determine whether AI’s ability to produce understandable information and to respond to inquiries granting in-person personal s- warrants granting them personal status within the polity that is currently enjoyed only by natural persons endowed by their unalienable right to life, liberty, and the pursuit of happiness.

Algorithmic models, it turns out, lack conscious intentionality that eighteenth century authors believed to be intrinsically connected to human pursuit of happiness through ordered government. AI systems’ lack intentionality renders them poor candidates for a speech pr- free speech rights despite their informational value to audiences.

Courts reviewing regulations on these technologies should not rely on the highest level of scrutiny for data produced by machine learning algorithms. Contrary to my position, a widely popular strong AI theory equates computation with human thought. It typically relies on output theory of speech. Its constitutional value is equated with listeners’ interests in acquiring information.

These scholars discount, and even more usually ignore, any notion that humans might have a unique consciousness that separates them from machines. These output arguments about the computational nature of speech were most influentially advanced by philosopher and mathematician Alan Turing in his seminal argument, Computing Machinery and Intelligence, where he rhetorically asked, “May not machines carry out something which ought to be described as thinking?”

Yet rather than engage in the counterarguments that would have recognized distinctions between imitation and thought, he adopted a functionalist notion of intelligence. But imitation is not reality. As other authors point out, LLMs are trained to imitate the outward forms of human speech, the sounds, the sequences of words they say, but they’re not capable of understanding the subjective thought and experiences behind the words.

They’re not even designed to u- to try. Instead of investigating the nature of individual cultural and legal thought, Turing is dismissive and therefore fails to explain why algorithmic models should be treated as actual intelligence. Turing’s influence on constitutional theory is vast, it’s lasting, and it’s extensive Several authors, including Professor Mathias Rissi, Simon Goldstein, Gua Kris-Krishnakumar, and Peter Salib argue that AI one day should be treated as a competent member of the political community.

Rissi, for example, writes that AI machines might eventually have moral status in our political community and presumably be covered by the terms of the declaration. While he does not provide the details of what computer participation in a public realm would entail, the implication is that LLMs should one day be superhuman legislators and voters.

After all, they’re gonna have some presumed super intelligence, better at making laws, better at deciding. So intelligent would these machines be, Rissi adds, that they would no longer permit for easy switch-offs. Taking this claim to a reductio ad absurdum conclusion, it would require criminal charges for anyone that would turn off a computer.

In fact, this is really quite a model that is… people are talking about. Arthur C. Clarke explored the dangerous absurdity of treating machines as moral humans capable of feeling in his two thousand and one A Space Odyssey. The novel includes a scene wherein a machine named Hal begs the lone surviving astronaut not to shut it off after it killed other astronauts aboard a spaceship who had compromised its ability to carry out a pre-programmed outer space mission.

Clarke’s machine, which he call– he tells the reader can reprodu-reproduce most of the activities of the human mind, remains a thing of fantasy. And yet the notion that computers are sen-sentient beings worthy of respect has morphed into the assertion in some circles that claim moral qualms about switching off machines, which is gaining popularity.

And what my students have told me, there is entire Instagrams of people showing off, “My boyfriend AI is better than your boyfriend AI.” This is an actual Instagram. I’ve seen the texts. I had a student tell me that she e-every time before she answers her boyfriend’s text, she consults with the AI These are pseudo-romantic things.

In a similar vein, other authors conceive of a future where super intelligent machines will require extending constitutional and civil rights to machine learning models. Professor Larry Solum, for example, is functionalist in his approach. He argues that any artificial intelligence that exhibits characteristics of human speech deserves constitutional recognition of their outputs.

This perspective equates GPAI’s language tokens with speech of volitional, conscious, natural persons. Professors Tony Maciero and Helen Norton also take a listener-centered approach, venturing to conjecture that in the future, strong AI machines will enjoy free First Amendment rights because they imagine a machine will eventually be able to think independently of human engagement.

Among other scholars who take this listener-based approach rather than a theory centered on conscious speakers are Professor Eugene Volokh, Mark Lemley, and Peter Henderson. They say that they are inclined to say that generative AI should be entitled to First Amendment protection because of its informational benefits to humans.

They claim that computer-generated speech should be protected because of the benefits such outputs provide for people. The authors are indubitably correct about the informational significance of LLMs and their widespread popularity. An increasing number of Americans rely on digital feeds to obtain and augment information about politics and moral decision-making.

Yet consider the implications of this position. If LLMs were to enjoy First Amendment rights, any regulation on them would be, would re, would regulation of them as related directly or indirectly to speech would be subject to the most stringent judicial scrutiny and to be presumptively unconstitutional.

Hence all but the most trite regulations of LLMs would likely be doomed because a court as they were would as some recent federal district courts would find that they– there’s a First Amendment right against these statutes being passed. There’s one in Cal-California, for example that was found unconstitutional on First Amendment grounds having to do with misinformation at times of elections.

GPAIs lack the purposeful and conscious human capacities that are intrinsic to the national ethos set down by the Declaration of Independence. LLMs run on zeros and ones over transmitters. They lack the most basic attributes of personhood essential to coverage under the First Amendment or other constitutional guarantees necessary to the equal pursuit of happiness.

Any equivocation of syntactical imitation with the self-evident truths of human nature set down by the Declaration of Independence would expand to machines safeguards guaranteed from the nation’s founding only to natural persons. Such an approach would be analytically unsound and historically suspect.

The nation’s founders understood the human power of speech. Long before seventeen seventy-six, they knew that public discourse was essential for, as they put it in the Declaration of Independence, challenging the long train of abuses and usurpations through institutions of representative government. As we saw earlier, the constitutionally protected right of expression should be understood to be an innate and substantive right of humans.

Public discourse is conducted by autonomous citizens. While machines can process and spit out grammatically sound information, they lack the unalienable intentionality that is presumed by the Declaration of Independence overarching schema of polity of equals meant to secure personal liberty and representative democracy.

Autonomous speech is not equivalent to data processing. The Declaration of Independence remains the living testament of how important free expression is to the very identity of the United States. The Framers laid down foundational norms of free speech for the nation. The lessons that the document teaches are those about the past, about liberty poles, about the correspondences of the Sons of Liberty.

But it also teaches something to us today about the present coverage of the First Amendment, which extends no further than natural persons. The ideals that are espoused by the Declaration of Independence are informed by history, national ethos, constitutional tradition, and human sensibilities about representative governments, where people can voice grievances without negative consequences The document created a par– the parameters of sovereign nationhood where self-aware individuals can meaningfully contribute to democratic self-governance.

Thirteen years after independence, the Constitution recognized that the source of national policies are we the people, not computational language models. GPAI neutra– neural networks are not identical to neurons found in the cerebral cortex. To date, neither Newtonian physics nor quantum mechanics explains how neurons process thought.

That’s unsurprising given the complexity of what’s involved. There are eighty-six billion neurons, or some people say ten to the tenth power neurons in our brain, with one hundred trillion connections to each other. The architecture of the brain has not been charted, nor is there any basis to believe that if that’s ever achieved, that would explain anything about abstract thought Philosopher John Searle points out that AI models merely simulate speech since they have no intentionality.

Indeed, GPAIs are incapable of innate mental experiences. Conscious self-expression reflects personality, empathy, personal happiness, disheartenedness, pain, hatred, adoration, dullness, and wit. Put simply, the American principle that all men are created equal does not appertain to GPAIs. They cannot enjoy constitutional rights, in large part because they lack consciousness of self, community, society, culture, and law.

Their production of understandable script is the product of natural language processing through probability theory. AI systems lack the basic elements of inward personhood, individuality, self-consciousness, and other mental states that render humanity uniquely protected under the Declaration of Independence and free speech guarantees of the First Amendment.

GPAIs produce syntactically correct sentences through algorithmic computations, but neither the computer nor the program it is running has any comprehension of self-evident truths on which the framers rested their argument about human equality. This conspicuous difference between computation and mental operation speaks to the relevance of the history and tradition of the Declaration of Independence to the debate about whether LLMs deserve free speech rights.

Machine models can process chatter, but they lack understanding, intentionality, and consciousness that are essential to the pursuit of happiness, self-fulfillment, and the institutions of government. The difference between sentient beings and machines could play a role in future development of Supreme Court free speech jurisprudence Now, let’s conclude by briefly reflecting on efforts by other democracies like Eur- the European law in– which is more sensitive to the dangers that lurk in unregulated un- artificial models.

The EU AI Act defines general purpose AI as something that gives responses to explicit and implicit questions that it has, that makes predictions about content and recommendations about virtual environments. The EU Act does not treat all content identically as the US Supreme Court purports to do.

Rather, the EU regulates AI outputs differently than it would the speech of natural persons. The act’s recognition of human cognitive interests is consistent with the declaration’s emphasis of human events, the opinions of mankind, and self-evident truths about people’s equal right to pursue their welfare while establishing a republican and political entity of human actors who enjoy First Amendment free speech to pr- rights to participate in discourse of the day.

The EU AI Act recognizes social interests in protecting against harms to human consciousness caused by sycophantic nature of chatbots. It also regulates AI systems that deploy subliminal techniques, something that would not be recognized in the United States and probably would be found unconstitutional under current doctrine, as would other measures of the A-EU AI Act, such as high risk things that occur in the models, biometric examinations and matters dealing with safety employment discrimination, housing discrimination, and so on and so forth of that type, which are content-based regulations that are likely to get strict scrutiny analysis under current doctrine, unless the court were to recognize that there is a special status for natural humans.

To show the disconnect with the United States here, a recent district court decision held that a California statute that regulated deceptive deepfakes during the course of election season was unconstitutional on First Amendment grounds. The Declaration of Independence and its cousin, the Constitution, created a nation of equal intentional perver– persons, not calculating machines.

The Declaration of Independence remains a binding statement of national aspiration. It speaks to us from the wisdom of past generations and the yearnings of ours. Its words inspired not only the revolutionary generation, but the f-freedom movements that followed it. They regarded statements of equality, representative polity, and unalienable rights to be the innate to natural humans.

No thought was put into the notion that the polity, with its commitment to freedom of speech, would extend to computational machines. Hence, extending free speech rights to algorithmic models would be a radical departure from the Declaration’s and the Constitution’s original meaning

Anne Twitty: I must admit, when I first opened Alex’s paper I really began to panic. As Michael’s introduction very accurately pointed out my own area of expertise is neither AI nor the First Amendment or speech more generally. But happily for me, and frankly happily for you, I think too, much of Alex’s argument i- is built around a series of claims made by a cast of abolitionist characters that I know quite well.

And this, as Michael also astutely noted has been a kind of theme running through a couple of the of the presenters’ comments today and indeed yesterday. So I, I wanna spend my comments today really focusing on their ideas. Specifically, I wanna situate abolitionists’ conception of the relationship between the Declaration on one hand and the Constitution on the other hand in the context of other Americans’ views on the subject.

I also want to explore abolitionist and broader founding era attitudes towards speech and the suppression of speech, and I wanna consider whether there might be a way in which abolitionists’ views could actually be used to license the very thing that Alex is cla- Alex is claiming that they never would.

That is, I wanna ask whether abolitionists’ deep commitment to the right to listen, not just the right to speak, provides fodder for scholars who have argued that AI might in fact be deserving of some kind of First Amendment recognition. I do this all hopefully to facilitate what I hope is a broader conversation about the role of abolition and abolitionists in our debates over the Constitution and the Declaration because it seems like they’re playing an ever-escalating role in them So I’m gonna get started by talking about abolitionists’ conception of the relationship between the Declaration and the Constitution.

As Alex shows, the abolitionists were especially keen to use the Declaration to advance their cause, and repeatedly made reference to its soaring appeals. A little less clear is the extent to which this move, this effort to treat the Declaration as equivalent to and coterminous with the Constitution, was distinctive from the way that their opponents tended to engage with it.

While abolitionists often referenced the Declaration and the Constitution in one breath, defenders of the institution of slavery were far more likely to talk about the Constitution alone. And indeed, as the abolitionist movement grew in the 19th century, Southern intellectuals realized that the Declaration’s language of universal equality was the sharpest weapon being used against them.

Their solution was to elevate the Constitution’s specific legal protections over the Declaration’s abstract ideals. In fact, most prais- pro-slavery thinkers eventually came to view the Declaration of Independence as a kind of dangerous rhetorical flourish or even a self-evident lie, while they meanwhile revered the Constitution as their primary legal shield.

What Alex shows us, in short, is one view of the relationship between the Declaration and the Constitution, and the importance of speech in both texts, but it’s not the only view, and I think we ought to reckon with the fact that abolitionists have a distinctive take for a distinctive set of reasons Nor indeed was the abolitionist commitment to free speech necessarily reflective of the broader community.

Again, pro-slavery politicians and thinkers were overly hostile to the spread of, for instance, abolitionist ideas, whether those ideas took the form of petitions to various governmental bodies, public addresses, or various forms of writing. Over the course of the early national and antebellum eras, they actively suppressed all kinds of anti-slavery speech.

But pro-slavery politicians and thinkers were not alone in their willingness to limit speech. 19th century Americans generally tolerated many forms of censorship by the government, whether that censorship focused on political dissenters and government critics, and here I’m thinking of the Alien and Sedition Acts, or the circulation of supposedly obscene material and information about birth control, as with the Comstock Act of 1873.

If in an attempt to undermine the notion that AI is entitled to First Amendment rights, Alex is attempting to recover a tradition that first places the Declaration on an equal footing with our Constitution, and second, lionizes free speech as foundational to the American project, it seems worth noting that there were also powerful rival traditions to contend with.

We may admire abolitionists, but is it appropriate to suggest that they had a kind of monopoly on the meaning or the conceptions of either, again, the relationship between the Declaration and the Constitution or the importance of speech? Should their views be controlling? Should they be seen as authoritative?

And I would say especially given the relative marginal number, the s- the relative marginal size of the abolitionist movement, and in fact the reality that they were a much maligned part of the American population for almost the entirety of their existence. If in fact abolitionists are to be our guiding lights as to the history and tradition of speech rights, however, I also wanna push Alex to wrestle a little bit more with the implications of the broadest possible reading of the abolitionist project.

After all, the most capacious understanding of abolitionism may well be that they pushed us to reject orthodoxy and to see things in new ways. Most white Americans would have accepted at the midpoint of the 18th century that people of African descent were inferior, not only of course socially, but most importantly culturally and intellectually.

Most, moreover, believed that the inferiority of Black people was innate and immutable. Abolitionists railed against this received wisdom. These old ways of thinking, they argued, were false. I think it could readily be said today that our received wisdom is that speech is a uniquely human act. How or why that may be so is perhaps in need of more elaboration.

But I promise, because I tested this out, I promise if you ask people whether or not AI is deserving of First Amendment rights, right? You ask ordinary people that is to say not lawyers the immediate response is generally confusion followed by a little bit of uncomfortable laughter, maybe some kind of eye rolls.

The very premise that AI could have some kind of First Amendment rights strikes them as bizarre, perhaps even deranged. It does I would argue at least in part, because we have so fully taken for granted the claim that Alex makes here, the claim that speech is this uniquely human act. So if the essence of abolitionism was a challenge to the existing order and existing patterns of thought, might not the abolitionists also be read as a challenge to our own orthodoxy about the proper subjects of speech rights?

Perhaps rather than focusing on the specific nature of abolitionists’ claim, we ought to think about the broader meaning of their claims. And if we do might the abolitionists be read as pushing us to be more imaginative in our understandings of who or what could exercise speech? This, of course, would entail reading abolitionists for the spirit of what they said rather than the letter, but this approach was something they themselves avidly endorsed as a method for interpreting the Constitution.

I wanna close with one last line of inwo- inquiry, one that tries to think seriously about Alex’s conception of speech rights, his interlocutor’s conception of speech rights, and finally, again, abolitionists’ conception of speech rights. Alex’s piece is designed as a refutation, of course, of the claim that AI might enjoy speech rights.

His focus is on demonstrating that founding-era conceptions of speech rights establish speech as uniquely human, as something born of consciousness and intent, and Alex largely concentrates on the generation of speech, on its creation. By contrast, Alex notes at one point that the scholars who have articulated the argument that AI, in fact, might enjoy some speech rights, among them Eugene Volokh, have instead mostly taken what Alex calls a listener-centric approach.

That is, when it comes to AI First Amendment rights, they have argued that we ought to be thinking about the consumers of AI rather than the producers of AI. As Volokh et al. have argued, the strongest argument for First Amendment protection stresses not the AI or its corporate owner as speaker, but rather the interests of the listener in receiving mean- meaningful communication Abolitionists, meanwhile, evinced commitments to both the right to speak and the right to listen.

They certainly, as Alex’s paper suggests, cared deeply about their own rights to speech, by which I mean their own right to create speech. But abolitionists also seem to have cared deeply about their right to circulate those ideas, their right to be heard or listened to. They could also, like Alex’s interlocutors, be, I think, quite listener-centric.

Here, two particular examples come to mind. We might first think about the abolitionist postal campaign of 1835. This was a direct mail effort by the American Anti-Slavery Society to flood the Southern United States with anti-slavery literature, the sense here being that those individuals in the South had essentially a right to listen to abolitionist thought.

Second, we might consider how abolitionists responded to congressional efforts to immediately table, without discussion, the abolitionist petitions that were submitted to that body between 1836 and 1844. This gag rule ultimately backfired because abolitionists successfully used the suppression of their petitions as proof of the existence of a kind of slave power that was conspiring to strip white Northerners of their civil rights.

Here, abolitionists relied not on the argument that they had a right to be heard, but also on a claim that the gag rule constituted some kind of tyrannical suppression of the public’s rights to know and to debate the morality of slavery. As Frederick Douglass asserted in an 1860 speech that addressed broad efforts to stifle the abolitionist message, free speech wasn’t just about the rights of the speaker.

“Equally clear,” he argued, “is the right to hear. To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his rights to speak and hear as it would be to rob him of his money.” I think Alex could do a little bit more in his paper to explicitly engage with this abolitionist commitment to the right to listen, and consider whether, by his own lights, it might actually end up strengthening some of his interlocutors’ claim.

That is, I would press Alex on whether an abolitionist conception of the right to listen creates grounds on which Volokh et al., if they were so inclined, might actually stand. I offer these reflections in the hopes that we might have a robust conversation, not just about AI and the First Amendment, and here I rely on you, the audience for some great questions in those specific directions, but also about the place of abolition and abolitionists in our contemporary conversations, both about the Declaration and the Constitution.

Thank you.

Alexander Tsesis: Those are excellent comments, and I really appreciate the thought of how to improve the argument particularly with your last point about the importance of the right to listen, the right to information. I think that’s critically important. Clearly, that’s… If we think of speech as being something for public discourse and for self-government, the right to listen, certainly to obtain information, was absolutely critical.

It was critical to the framers wh- w- who would send out these correspondence letters and who had to communicate with each other, and so it’s essential, and it’s clearly a part of self-government. So it, it f- undoubtedly, one of the protection of free speech under the First Amendment must include listener rights, and I love the idea of using the gag rule and the postal restrictions and the Jackson administration for that.

Where I’d, where my particular perspective on the First Amendment is, though, is that it is speaker centered, that its primary purpose is speaker centered. So this is distinguished from the Meiklejohnian version of the town hall informational type of concept of speech. So M- Meiklejohn envisioned speech as being something, free speech as being something like a town hall where there was an order, there’s a microphone, people take turns to speak.

They don’t speak out of order. They don’t say things like, “Fuck the draft,” as you have in Cohen. But that in public discourse, the– our ability to pursue happiness, our ability to express ourselves is really what’s at the core of free speech. And so sometimes we do put restrictions on listeners. For example, i- let’s say I’m the owner of a pharmaceutical company, and I happen to know there’s gonna be…

We’re a major publicly traded pharmaceutical company, and I know there’s gonna be a major lawsuit that’s gonna drop tomorrow. It’s gonna be all over the news. The markets are gonna be closed, and our stock is for– almost for sure gonna drop, like, all get out. And I wanna tell my mother because I’ve had my mother purchase lots of this stock to sell before the close of the market.

I can’t tell her, even though she clearly has an interest. The same thing is true about securities regulations, right? They have certain restrictions on the things that a listener might have an interest in order to find out. In some ways, they expand it. In some ways, they contract it. So I think that the right to listen is, and the right to receive information is of central and critical importance to the First Amendment, as Annie so astutely points out.

But that the real function of the First Amendment at its core is really the protection of our ability to express our intentions, our con- our conscious views, and our developments of public discourse and the advancement of self-government and personal expression as well.