LLMs and SCOTUS

The quick Constitutional case for AI laissez-faire

Since the New Deal, the Supreme Court has given government almost unlimited power to regulate the economy. Wickard v. Filburn (1942) infamously ruled that a farmer growing wheat to feed his own animals on his own farm was nevertheless engaged in “interstate commerce.” Given this stance, it’s hard to see how the courts could justify any restrictions on government regulation of the rapidly growing Artificial Intelligence industry.

Hard, that is, as long as you call it “the Artificial Intelligence industry.” But all of the top AIs also go by another acronym: LLMs, which of course stands for Large Language Models.* Which makes sense, because the primary output of this industry is just a bunch of words.

So what? While the Supreme Court has given government a virtual carte blanche to regulate the economy for over 80 years, constitutional protection of freedom of expression has probably never been stronger. In 1969, the Supreme Court moved from the classic “clear and present danger” test for permissible regulation of free speech to the even higher “imminent lawless action” test. By eviscerating obscenity law, Miller v. California (1973) even effectively extended full constitutional protection to almost all pornography, allowing the industry to thrive despite its extreme unpopularity. Though more Americans morally condemn pornography than abortion, the Supreme Court stands with porn.

Upshot: Once you acknowledge the truism that AI output is speech, almost all regulation of AI is ipso facto illegal. Government has no more legal right to regulate AI than it has to regulate the New York Times. Even if you’re a convinced doomer, you have to admit that the danger of existing LLMs is not “clear and present,” much less “imminent.” If the Supreme Court has an iota of consistency, the AI industry will be able — barring an anti-AI amendment to the Constitution — to fend off virtually all regulation with ease.

Does the Supreme Court have an iota of consistency? Based on past performance, the jury is still out. When (not if) AI comes before the Supreme Court, I bet SCOTUS will side with the government against the industry. But hopefully I’m wrong.

P.S. Volokh, Lemley, and Henderson, all top legal scholars, basically agree with me.

* Images and videos are the main non-linguistic AI outputs, but these too enjoy the strongest constitutional protections.