Tag: applies

  • FIRE to court: AI speech is still speech — and the First Amendment still applies

    FIRE to court: AI speech is still speech — and the First Amendment still applies

    This week, FIRE filed a “friend-of-the-court” brief in Garcia v. Character Technologies urging immediate review of a federal court’s refusal to recognize the First Amendment implications of AI-generated speech.

    The plaintiff in the lawsuit is the mother of a teenage boy who committed suicide after interacting with an AI chatbot modeled on the character Daenerys Targaryen from the popular fantasy series Game of Thrones. The suit alleges the interactions with the chatbot, one of hundreds of chatbots hosted on defendant Character Technologies’ platform, caused the teenager’s death. 

    Character Technologies moved to dismiss the lawsuit, arguing among other things that the First Amendment protects chatbot outputs and bars the lawsuit’s claims. A federal district court in Orlando denied the motion, and in doing so stated it was “not prepared to hold that the Character A.I. LLM’s output is speech.” 

    FIRE’s brief argues the court failed to appreciate the free speech implications of its decision, which breaks with a well-established tradition of applying the First Amendment to new technologies with the same strength and scope as applies to established communication methods like the printing press or even the humble town square. The significant ramifications of this error for the future of free speech make it important for higher courts to provide immediate input.

    Contrary to the court’s uncertainty about whether “words strung together by an LLM” are speech, assembling words to convey messages and information is the essence of speech. And, save for a limited number of carefully defined exceptions, the First Amendment protects speech — regardless of the tool used to create, produce, or transmit it.  

    As we told the court, it’s important to answer questions about the First Amendment’s application quickly and fully. Not just to minimize the impact on the parties to the case, but to avoid uncertainty about the First Amendment’s reach that would chill expression more broadly. 

    That clarity is especially important when the case presents novel issues about an emerging technology. Early decisions in cases about new expressive technologies influence the development of jurisprudence, sometimes becoming accepted “defaults” for decades. For example, the development of Section 230 jurisprudence was heavily influenced by the early Zeran v. America Online case, which still provides the generally accepted interpretation of that law nearly two decades later. Fortunately, the Zeran court got it right. But if the decision in Garcia has a similar impact, expressive rights are in serious trouble.

    Delaying review of the district court’s decision will chill a great deal of expression while the case otherwise winds toward an appealable decision — particularly given the implications of holding AI outputs are not speech. If that endures, the government would have vast power, without any constitutional limit, to regulate what we may say, how (and how effectively) we may say it, and even what we know and how we may learn it.

    Whether AI output is speech is a question with profound implications. If it is not speech, plaintiffs will be able to impose liability for the distribution of ideas in a way that courts have steadfastly rejected for other forms of media. 

    The district court’s analysis bypassed these issues and gave the First Amendment question far less consideration than it deserved. This warrants the immediate intervention of an appellate court to approach this issue with a level of rigor befitting the paramount constitutional principle at stake. 

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  • There’s nothing certain about the circumstances when a duty of care applies to students

    There’s nothing certain about the circumstances when a duty of care applies to students

    The Secretary of State for Education was recently asked in Parliament if she would meet with campaigners to discuss the “duty of care” owed by higher education providers to their students.

    Janet Daby – the Minister for Children, Families and Wellbeing in the Department for Education (DfE) responded on her behalf, and also outlined the department’s current view on the law for holding negligent institutions to account.

    At first glance, her response was unhelpful – arguing the department’s position is that a duty of care in higher education may arise in “certain circumstances”:

    Such circumstances would be a matter for the courts to decide, based on the specific facts and context of the case being considered, and will be dependent on the application by a court of accepted common law principles.

    It would be easy to argue that lawmakers, including Janet Daby and skills minister Jacqui Smith, should not simply defer to the courts on matters of law and institutional accountability.

    After all, lawmakers have the power to create laws – so overall responsibility doesn’t rest solely with judges and their judicial interpretation of common law principles.

    But perhaps Daby’s response was more helpful than it looked – because it directly confronts misleading statements that have persisted since 2023, particularly those made by former Minister Robert Halfon.

    Although some might view her answer as a cautious response, in reality, it was a breath of fresh air – a much-need step in addressing the confusion that has clouded our understanding of legal responsibilities in higher education.

    From Halfon’s Law to Daby’s Law

    To grasp the significance of Janet Daby’s correction, we must first revisit the origins of the confusion – what I’ll call here Halfon’s Law.

    Introduced by Robert Halfon in 2023, it laid the foundation for a misrepresentation of the legal duties owed by higher education providers to their students. Halfon’s Law is a belief that stemmed from a misunderstanding of online material, initially presented in a now-deleted AMOSSHE blog that was published in 2015.

    In responding to the 128,000+ registered voters who signed our parliamentary e-petition calling for a statutory duty of care, Halfon asserted his department’s belief that universities already owed their students a broad and generalised duty of care. He said:

    Higher Education providers do have a general duty of care to deliver educational and pastoral services to the standard of an ordinarily competent institution and, in carrying out these services, they are expected to act reasonably to protect the health, safety and welfare of their students. This can be summed up as providers owing a duty of care to not cause harm to their students through the university’s own actions.

    At first glance, this might sound reasonable, but in truth, it was far from accurate. By conflating a general moral and legal principle – to act in a way that avoids causing harm to others – with a formal, court recognised duty of care that only arises in specific, legally-defined circumstances and relationships, Halfon introduced a dangerous oversimplification.

    It was a distortion used to justify dismissing the petitioners’ call for a statutory duty of care, effectively silencing important conversations about the protections that students need.

    Halfon’s Law, with the documented source having now been quietly removed from its original website, was a misstep in understanding the complexities of legal responsibilities in higher education. Its fall from grace is something to be celebrated.

    Enter Daby’s Law: Janet Daby’s response marks a shift towards legal clarity. A duty of care may arise in certain specific circumstances, but ultimately, it is the courts that will determine the existence and application of any such duty on a limited case-by-case basis – should lengthy and costly litigation ever actually occur.

    As it stands therefore, nobody truly knows what protections are in place, leaving students vulnerable, and institutions at risk of being punished for failing to do the right thing. As such, Daby’s position not only corrects the errors of Halfon’s Law, but also raises significant concerns, including the urgent need for a properly codified duty that both universities and their students can understand.

    The advocacy that led to Daby’s law

    Daby’s correction of the record didn’t happen by chance. It was the direct result of relentless behind-the-scenes efforts from advocates, especially ForThe100, who recognised the need to dismantle Halfon’s contention? – since it was a significant barrier preventing meaningful progress.

    For too long, Halfon’s Law and its sweeping and factually incorrect statements had clouded the conversation around student safety and wellbeing, effectively stopping us from moving forward and pushing for the protections students desperately need. Too many policymakers thought it true – and so dismissed the need for a dedicated duty.

    The subtle shift in content and tone, while preferable to outright inaccuracy, introduces its own set of challenges. Without clear or codified guidance, students, families, and institutions are left to navigate a murky and uncertain legal landscape.

    That vagueness is deeply problematic. It means widespread confusion about rights and responsibilities, leaving institutions uncertain of their obligation, and exposed to unforeseen legal liabilities – while students are left unsure of the protections they can depend on.

    Worse, the lack of clear, direct, and upfront standards is a reactive rather than proactive system, shifting the burden onto individuals to seek legal recourse only after harm has occurred.

    This approach neither prioritises prevention nor ensures accountability, leaving gaps in a system meant to put students first.

    It is now crucial that the government corrects the public response to our petition without delay. Halfon’s Law remains embedded in the official narrative, and its continued presence in government communications perpetuates confusion, and blocks meaningful progress.

    More importantly, for over five decades, students have been without adequate legal protection, and this gap continues to undermine their safety and wellbeing.

    Nobody should be reassured by a duty that arises in “certain circumstances” where those circumstances would be a matter for “the courts to decide”. Students and universities need instead to know where they stand – with the same sort of clarity on offer for the duty of care that universities as employers owe to their staff.

    The next step is for the government to act – taking concrete steps toward enacting statutory reform that holds higher education institutions accountable for their acts and omissions with regard to student safety and wellbeing, and giving students and their families the confidence that when they enrol into a university, they know the minimum “duty of care” that they can actually expect.

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