William & Mary Bill of Rights Journal
Abstract
Generative AI took a massive leap forward in late 2022 and early 2023 with the introduction of public access to ChatGPT and Bard. OpenAI, whose ChatGPT tool garnered more than 100 million users in fewer than two months, upgraded to GPT-4 in March 2023. These AI tools, and those who create and use them, almost certainly represent the vanguard of a new generation of publishers, which will join the long queue of communicators who have challenged courts to define the role and place of the Press Clause. AI publishers raise substantial legal questions in fields including defamation, intellectual property, and privacy law, particularly regarding the liability human actors incur when employing AI tools. This Article, however, focuses solely on whether the Press Clause protects AI publishers, not as extensions of human publishers, but purely as non-human entities that gather and communicate information that is available to audiences.
To address this question, this Article first outlines the background and nature of generative AI tools, particularly in their roles as publishers. Next, this Article examines the history of the Press Clause, focusing on how late eighteenth-century authors in the colonies defined and discussed press freedoms and the role of news in democratic society and how legal scholars have conceptualized the Clause and its meaning. From there, this Article examines crucial Supreme Court decisions regarding the press and Press Clause, particularly concerning how the Justices defined and communicated understandings regarding the press as being both instrumentally and institutionally crucial to the flow of ideas in a democratic society. The conclusions draw the conceptual building blocks from these areas together to identify whether AI communicators should receive Press-Clause protections.
This abstract has been taken from the author's introduction.