8/12/1795: Chief Justice John Rutledge takes judicial oath.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Short Circuit: A Roundup of Recent Federal Court Decisions
Butterfly knives, and prison atrocities, and a clueless detective.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Friends, the Short Circuit team has a new podcast, Unpublished Opinions, where we go beyond the federal courts of appeals to see what's on the legal minds of IJ attorneys. In this first episode, Patrick Jaicomo airs some grievances about how (actual) unpublished opinions are treated, and Anya Bidwell muses on SCOTUS oral arguments.
Journal of Free Speech Law: "The European Liability Regime For Large Language Models"
"Is It a Platform? Is It a Search Engine? It's Chat GPT!," by Prof. Beatriz Botero Arcila, just published in our symposium on Artificial Intelligence and Speech; more articles from the symposium coming in the next few days.
The article is here; the Introduction:
ChatGPT and other AI large language models (LLMs) raise many of the regulatory and ethical challenges familiar to AI and social media scholars: They have been found to confidently invent information and present it as fact. They can be tricked into providing dangerous information even when they have been trained to not answer some of those questions—such as giving advice on how to plan an attack or how to build a Molotov cocktail if asked through hypotheticals. They can output detailed arguments very quickly, which may make the cost of producing disinformation very low (though some have argued that this risk is overblown because that cost is already very low). Their ability to mimic a personalized conversation can be very persuasive, which creates important disinformation and fraud risks. They reproduce various societal biases, because they are trained on data from the internet that embodies such biases, for example on issues related to gender and traditional work roles. They have already started raising data protection and security concerns, as shown by a first leak of user data in late March 2023 and Italy's data protection agency's temporary ban of ChatGPT.
Thus, like other AI systems, LLMs risk sustaining or enhancing discrimination and perpetuating bias, and promoting the growth of corporate surveillance, while being technically and legally opaque. Like social media, LLMs pose risks associated with the production and dissemination of information online that raise the same kind of concern over the quality and content of online conversations and public debate. All these compounded risks threaten to distort political debate, affect democracy, and even endanger public safety. Additionally, OpenAI reported an estimated 100 million active users of ChatGPT in January 2023, which makes the potential for a vast and systemic impact of these risks a considerable one.
LLMs are also expected to have great potential. They will transform a variety of industries, freeing up professionals' time to focus on different substantive matters. They may also improve access to various services by facilitating the production of personalized content, for example for medical patients or students. Consequently, one of the key policy questions LLMs pose is how to regulate them so that some of these risks are mitigated while still encouraging innovation and allowing their benefits to be realized. This Essay examines this question, with a focus on the liability regime for LLMs for speech and informational harms and risks in the European Union.
Journal of Free Speech Law: "An AI's Picture Paints a Thousand Lies: Designating Responsibility for Visual Libel,"
by Prof Jon M. Garon, just published in our symposium on Artificial Intelligence and Speech; more articles from the symposium coming in the next few days.
The article is here; the Introduction:
In the 1994 film Forrest Gump, a cleverly created scene has Tom Hank's character, Forrest Gump, meeting President John F. Kennedy. The newsreel voice-over begins: "President Kennedy met with the members of the all-collegiate football team today in the Oval Office." The narration is picked up by Gump: "Now the really good thing about meeting the President of the United States is the food. . . . I must have drunk me about fifteen Doctor Peppers." By the time it is his turn to meet the President, however, the sodas have taken their toll on an increasingly anxious Gump. Kennedy is seen asking most players, "How does it feel to be an All-American?" To Gump, he simply says, "How do you feel," to which Gump answers honestly, "I gotta pee." Kennedy laughs, commenting to the reporters, "I believe he said he had to go pee." This famous interaction between the fictional character and the long-dead president remains shocking in its apparent—but illusory—authenticity.
Two decades later, the technology to construct such scenes has gone from a feat of amazing cinematographic wizardry to common internet filler. Kendrick Lamar used deepfake technology to morph his image into that of "O.J. Simpson, Kanye West, Jussie Smollett, Will Smith, Kobe Bryant, and Nipsey Hussle." In March 2023, a photograph of "Pope Francis wearing a big white Balenciaga-style puffer jacket" became an internet staple. Unsurprisingly, synthetic media has also been used for military disinformation. In the Russian war against Ukraine, a video depicting Ukrainian President Volodymyr Zelenskyy ordering Ukrainian troops to lay down their arms and surrender appeared both on social media and broadcast briefly on Ukrainian news. Some synthetic content has already found commercial adoptions such as the replacement of South Korean news anchor Kim Joo-Ha with a synthetic look-alike on South Korean television channel MBN, or one company's introduction of internet influencer Lil Miquela, an alleged nineteen-year-old, as their spokesperson. In reality, Miquela is an entirely artificial avatar created by AI media agency Brud. She has over 3 million Instagram followers and has participated in brand campaigns since 2016. She is expected to earn Brud in excess of $1 million in the coming year for her sponsored posts.
Principles for a Campus Culture of Free Inquiry
A new statement worth reading for those concerned with academia
A group of scholars interested in free inquiry and the future of higher education met in Princeton last spring and began a conversation about what principles ought to guide a well-functioning scholarly institution dedicated to the mission of the preservation and advancement of knowledge. With radical proposals for higher education reform very much in the air, especially on the political right, it was hoped that it would be helpful to have a statement clarifying the objectives that any reform measure should be seeking to advance.
Don Downs, the Alexander Meiklejohn Professor of Political Science Emeritus at the University of Wisconsin at Madison and a long-time advocate of academic freedom and campus free speech, did the heavy lifting of drafting a statement and working to build a consensus. I was happy to join the final statement.
From the statement:
The American university is a historic achievement for many reasons, not least of which is that it provides a haven for free inquiry and the pursuit of truth. Its unique culture has made it a world leader in advancing the frontiers of practical and theoretical knowledge. The habits of mind required for this advancement of knowledge sustain our republic by educating citizens in the liberality and intellectual independence necessary to participate in self-government in a pluralistic society.
To do their work well, universities need a protected sphere of operation in which free speech and academic freedom flourish. Scholarship and teaching cannot achieve their full potential when constrained—externally or internally—by political, ideological, or economic agendas that impede or displace the disinterested process of pursuing truth and advancing knowledge.
You can read the whole thing here.
Journal of Free Speech Law: "Bots Behaving Badly: A Products Liability Approach to Chatbot-Generated Defamation,"
by Prof. Nina Brown, just published in our symposium on Artificial Intelligence and Speech; more articles from the symposium coming in the next few days.
The article is here [UPDATE: link fixed]; the Introduction:
Within two months of its launch, ChatGPT became the fastest-growing consumer application in history with more than 100 million monthly active users. Created by OpenAI, a private company backed by Microsoft, ChatGPT is just one of several sophisticated chatbots made available to the public in late 2022. These large language models generate human-like responses to user prompts based on information they have "learned" during a training process. Ask ChatGPT to explain the concept of quantum physics and it synthesizes the subject into six readable paragraphs. Prompt it with an inquiry about the biggest scandal in baseball history and it describes the Black Sox Scandal of 1919. This is a tool that can respond to an incredible variety of content creation requests ranging from academic papers to language translations, explanations of complicated math problems, and telling jokes. But it is not without risk. It is also capable of generating speech that causes harm, such as defamation.
Although some safeguards are in place, there already exist documented examples of ChatGPT creating defamatory speech. And this should not come as a surprise—if something is capable of speech, it is capable of false speech that sometimes causes reputational harm. Of course, artificial intelligence (AI) tools have caused speech harms before. Amazon's Alexa device—touted as a virtual assistant that can make your life easier—has on occasion gone rogue: It has made violent statements to users, and even suggested they engage in harmful acts. Google search's autocomplete function has fueled defamation lawsuits arising from suggested words such as "rapist," "fraud," and "scam." An app called SimSimi has notoriously perpetuated cyberbullying and defamation. Tay, a chatbot launched by Microsoft, caused controversy when just hours after its launch it began to post inflammatory and offensive messages. So the question isn't whether these tools can cause harm. It's when they do cause harm, who—if anyone—is legally responsible?
Today in Supreme Court History: August 11, 1942
8/11/1942: General John DeWitt, Commander of Western Defense Command, issues exclusion order. The Supreme Court held this order was constitutional in Korematsu v. United States.
New Article on Insurrection, Rebellion, and Section Three of the Fourteenth Amendment
Michael Stokes Paulsen and I have a new draft article: The Sweep and Force of Section Three, that is forthcoming in the Pennsylvania Law Review.
Here is the abstract:
Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three's full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as "aid or comfort." It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
And from the Introduction:
Immigration, Invasion, and Habeas Corpus
If Texas is right to argue that illegal immigration and cross-border drug smuggling qualify as "invasion," then the writ of habeas corpus can be suspended at any time - thereby enabling executive detention without trial.
In my last post, I criticized Texas's argument that illegal migration and cross-border drug smuggling qualify as "invasion" under Article I of the Constitution, thereby authorizing state governments to "engage in war" to stop them. If Texas and other advocates of this theory are correct, it has an additional radical implication: the federal government can suspend the writ of habeas corpus at pretty much any time it wants.
The writ of habeas corpus protects people from being detained by the government without trial. If federal or state officials detain you, the writ gives you the right to challenge the legal basis for that detention in court. But the Suspension Clause of the Constitution (Article I, Section 9, Clause 2) states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (emphasis added).
If illegal migration and drug smuggling qualify as "invasion" for purposes of triggering state and federal authority to resist invasion under the invasion clauses, they surely also qualify as such under the Suspension Clause. And there is a significant amount of illegal migration and smuggling of contraband goods going on at virtually all times in modern history. Thus, presto! The federal government can suspend the writ of habeas corpus virtually any time it wants!
In fairness, even when there is a "Rebellion or Invasion" going on, the Clause says the writ many only be suspended if "the public Safety may require it." But this is the kind of issue on which courts are likely to defer to Congress and the executive. That's especially true since the Clause permits suspension even if public safety only "may" require it. Certainty isn't necessary.
At least in border areas (where many millions of people live), it's almost always possible to argue that "public safety" will be improved by suspension. If law enforcement can indefinitely detain anyone who looks like they might be a drug smuggler or an undocumented immigrant, surely that would help combat the "invaders"! Or at least it's plausible to argue that it "may" do so. Moreover, the suspension power is not limited to recent immigrants, but applies to US citizens, as well. Historically, suspension has indeed been used against citizens, as was the case during the Civil War and other conflicts. And, obviously, US citizens can and do smuggle drugs across the border, and sometimes help undocumented immigrants cross, as well.
There is a longstanding debate over whether the power to suspend the writ of habeas corpus can be exercised by the President acting on his own, or only with congressional authorization. The Supreme Court has never definitively resolved the issue. Abraham Lincoln famously advocated the former view during the Civil War, while Chief Justice Roger Taney backed the latter. I think this is a rare case where the historical bad guy (Taney) had the better of the argument.
If the suspension power does belong to the president and illegal migration and drug smuggling qualify as "invasion," that means whoever occupies the White House can suspend the writ of habeas corpus anytime he wants, thereby wielding the power of detention without trial. Even if you believe Joe Biden would never abuse that power, I suspect you don't have the same confidence in whoever the next Republican president might be. If you trust Republican presidents to wield such authority responsibly, I bet you probably don't trust the Democratic ones. Personally, I don't think any politician can be trusted with such sweeping detention authority.
Matters are somewhat less dire if suspension requires congressional authorization. At least the power would not be in the hands of any one person. Still, Congress would now be able to enact such authorization at virtually any time. And, historically, Congress is often willing to overdelegate to the executive, especially when the White House is controlled by the same party as Capitol Hill.
In sum, if illegal migration and drug smuggling qualify as "invasion," that implies the writ of habeas corpus can be suspended at virtually any time. And the suspension could be continued so long as the illegal migration and smuggling themselves continue (which is likely to be as long as we have significant immigration restrictions and the War on Drugs). This absurd and dangerous implication of Texas' argument strikes me as yet another reason for courts to reject it.
NOTE: The main point advanced in this post was suggested to me by my Cato Institute colleague David Bier. He deserves credit for the idea, but not blame for any mistakes I may have made in developing it further!
Thursday Open Thread
What's on your mind?
Trump Is Disqualified from Being on Any Election Ballots
Section Three of the Fourteenth Amendment bans anyone from holding any federal office who has taken an oath to uphold the Constitution and who then breaks that oath by engaging in "insurrection or rebellion against the same." Donald J. Trump is precisely such a person.
Trump took the Presidential oath of office at noon on January 20, 2017. Then, knowing that he had lost the 2020 election, he engaged in an "insurrection" on January 6, 2021.
Trump tried to persuade Vice President Mike Pence and Members of Congress not to count certain state electoral votes, which had been validly cast. He lied to the American people for years that the election had been stolen and continues to repeat those lies even to the present day.
Section Three of the Fourteenth Amendment is self-enforcing. It is "the supreme Law of the Land" binding on each of the 50 State Secretaries of State and their subordinates who draw up primary or general election ballots.
State Secretaries of State and their subordinates may not list on their election ballots as candidates for President anyone who is not eligible to hold the office of President. To be eligible to hold the office of President, one must be: 1) a natural born Citizen; 2) thirty-five years or older; 3) a Resident of the United States for fourteen years; and 4) a person who has not broken their oath of office to support the Constitution by engaging "in insurrection or rebellion against the same."
No jury verdict is required to determine whether a candidate who seeks to run for the presidency on a primary or general election ballot is: a natural born citizen, who is 35 years of age, and fourteen years a resident of the United States. Likewise, no jury verdict or act of Congress is required to keep a Secretary of States and their subordinates from printing ballots with the name "Donald J. Trump" on them.
Keeping Trump off the ballot after his conduct on January 6, 2021 does not deprive him of life, liberty, or property in the same way that a criminal or a civil jury verdict could. It is a privilege to be eligible to run for President of the United States and that privilege does not extend to constitutional oath breakers who engage "in insurrection or rebellion against the same."
Webster's 1828 Dictionary of American English defines "insurrection" as follows:
INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.] 1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy, insurrection is however used with such latitude as to comprehend either sedition or rebellion.
Texas is Wrong to Equate Immigration and Drug Smuggling with "Invasion"
The argument is contrary to the text and original meaning of the Constitution, goes aginst precedent, and would have absurd consequences if accepted by courts.
The federal government is suing the state of Texas for installing floating buoy barriers in the Rio Grande River, thereby creating a safety hazard and potentially impeding navigation. The claimed purpose of the buoys is to prevent undocumented migration and drug smuggling across the US-Mexican border. The Biden Administration argues Texas's action violates the federal Rivers and Harbors Act, which restricts placement of barriers in navigable waters.
As Josh Blackman notes, Texas' brief in response to the lawsuit makes various statutory arguments, but also cites one of the "invasion" provisions of the Constitution as justification for the state's actions. Texas relies on Article I, § 10, cl. 3 of the Constitution, which provides, "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas contends that illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in response, including placing buoys that would otherwise violate federal law.
Equating immigration and drug smuggling with "invasion" is not a new idea. It has long been advanced by immigration restrictionists as a legal justification for both federal and state measures against migration. I recently criticized these kinds of theories here:
[S]ome have argued that the Guarantee Clause of the Constitution, gives state and federal governments the authority to use military force to block such migration. The Clause states that "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence…."
As a matter of logic and common sense, the equation of illegal migration and invasion makes little sense. Invasion involves large-scale use of force (or at least threat of force) to seize territory. Russia's attack on Ukraine is an invasion. Migrants crossing a border in search of freedom and opportunity are not….
The text of the Guarantee Clause suggests that it refers to violent attack. "Invasion" is paired with "domestic Violence" (which here obviously means uprisings against the state government, not the modern use of the term to denote violence in family and intimate relationships). [Andrew] Hyman also cites the provision of the Constitution indicating that "No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." But the "invasion" referred to here is pretty obviously an armed attack. Otherwise, it would not make sense to "engage in War" as a response to it. I think it obvious that the "war" referred to here is a literal war against a foreign power, not a metaphorical war, such as the War on Drugs or the War on Poverty. This Clause is an exception to the constitutional requirement that only Congress has the power to declare war….
It might be argued that any illegal movement from one place to another qualifies as an "invasion." By that standard, however, an invasion occurs anytime someone smuggles in contraband, violates tariff regulations, and so on. In the pre-Civil War era, some states, such as Indiana, enacted laws banning the in-migration of free blacks from other states [as explained elsewhere in my earlier post, the Clause applies to interstate, as well as international invasions]. But it would be absurd to claim that black migrants who violated these laws were thereby "invading."
Similarly, one can argue that an "invasion" occurs anytime at least some migrants engage in violence…. But by that standard, one state has "invaded" another anytime criminals cross a state border to engage in any violent action. A real "invasion" requires a large-scale attack on the territorial or political authority of the state. Small-scale, nonpolitical private violence doesn't qualify.
It's worth emphasizing the fact that, if illegal immigration or drug smuggling really do qualify as an "invasion," then the Constitution authorizes states to "engage in War" as a response. In other words, Texas would be authorized to take such actions as sending its National Guard to invade Mexico, in order to attack drug cartels or forestall undocumented migration. Even if current Texas Governor Greg Abbott wouldn't do such a thing, a future governor perhaps would, if he thought it might be politically advantageous. This absurd - and dangerous - implication of Texas's argument is an additional reason to reject it.
Later in the same piece, I critique efforts to ground the invasion theory in various statements by James Madison, including the same ones Texas relies on in its brief, such as passages in Federalist 43, and one of Madison's speeches during the Virginia debate over the ratification of the Constitution.
Those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question: the Report of 1800, which rebutted claims that the Alien Friends Act of 1798 (which gave the president broad power to expel non-citizens) was authorized by the Invasion Clause. There, Madison explicitly rejected the idea that immigration qualifies as invasion, emphasizing that "Invasion is an operation of war." I discuss Madison's Report of 1800 in greater detail later in the piece, and also in follow-up posts responding to Andrew Hyman and Rob Natelson (see here and here).
It may be true, as Texas claims, that an "invasion" need not be an attack by a foreign government. But it does have to be a large-scale armed assault. Immigration or smuggling don't qualify.
Finally, it's worth noting this is not the first case in which federal courts have had to address this kind of argument. In the 1990s and early 2000s, various states filed lawsuits where they tried to use the invasion provision of the Guarantee Clause as a rationale for forcing the federal government to crack down more on illegal migration or compensate states for immigration-related expenses.
Most of the resulting decisions held that the Invasion Clause is a nonjusticiable political question. But two federal appellate court rulings also held that illegal migration does not qualify as an invasion. In Padavan v. United States, 82 F.3d 23(1996), the US Court of Appeals for the Second Circuit held that "In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state's government. See The Federalist No. 43 (James Madison) (stating that the reason for the Invasion Clause is to protect the states from "foreign hostility" and from "ambitious or vindictive enterprises" on the part of other states or foreign nations)." The Third Circuit reached the same conclusion in New Jersey v. United States, 91 F.3d 463 (3d Cir. 1996).
For some reason, Texas failed to cite these precedents. Its brief also neglects Madison's Report of 1800, even as it relies on other, far less relevant statements by Madison to try to buttress its case.
These two earlier circuit court precedents are not binding on the district court adjudicating Texas' claim, which is located in the Fifth Circuit. But they are obviously relevant. The district court and Fifth Circuit judges should know they would create a circuit split if they endorse Texas' invasion argument.
In my earlier piece on this topic, I predicted that "we are unlikely to see any significant litigation over the meaning of 'invasion' as it relates to immigration, anytime soon," because in the Chinese Exclusion Case (1889), the Supreme Court held (very wrongly, in my view) that the federal government has a nearly unlimited "inherent" power to restrict immigration, without relying on the invasion clauses. I also noted that states have broad power to use military forces for law enforcement purposes even aside from the Invasion Clause of Article I, Section 10. Clearly, I didn't foresee a case like this one!
Perhaps Texas deserves to prevail in this case based on purely statutory arguments under the Rivers and Harbors Act. I take no position on that part of the issue. But courts should reject the wrongheaded and dangerous "invasion" theory.
UPDATE: In a follow-up post, I explain why Texas's position has dire implications for the writ of habeas corpus, which the federal government would have the power to suspend at virtually any time.
Journal of Free Speech Law: "Authorbots," by Profs. Derek E. Bambauer & Mihai Surdeanu
Just published, in our symposium on Artificial Intelligence and Speech; more articles from the symposium coming in the next few days.
The article is here; here is the Introduction:
ChatGPT has exploded into the popular consciousness in recent months, and the hype and concerns about the program have only grown louder with the release of GPT-4, a more powerful version of the software. Its deployment, including with applications such as Microsoft Office, has raised questions about whether the developers or distributors of code that includes ChatGPT, or similar generative pre-trained transformers, could face liability for tort claims such as defamation or false light. One important potential barrier to these claims is the immunity conferred by 47 U.S.C. § 230, popularly known as "Section 230."
In this Essay, we make two claims. First, Section 230 is likely to protect the creators, distributors, and hosts of online services that include ChatGPT in many cases. Users of those services, though, may be at greater legal risk than is commonly believed. Second, ChatGPT and its ilk make the analysis of the Section 230 safe harbor more complex, both substantively and procedurally. This is likely a negative consequence for the software's developers and hosts, since complexity in law tends to generate uncertainty, which in turn creates cost. Nonetheless, we contend that Section 230 has more of a role to play in legal questions about ChatGPT than most commentators do—including the principal legislative drafters of Section 230—and that this result is generally a desirable one.
Journal of Free Speech Law: "Section 230 Won't Protect ChatGPT," by Prof. Matt Perault
Just published, in our symposium on Artificial Intelligence and Speech; more articles from the symposium coming in the next few days.
The article is here [UPDATE: link corrected]; the Introduction:
The emergence of products fueled by generative artificial intelligence (AI) such as ChatGPT will usher in a new era in the platform liability wars. Previous waves of new communication technologies—from websites and chat rooms to social media apps and video sharing services—have been shielded from legal liability for user-generated content posted on their platforms, enabling these digital services to rise to prominence. But with products like ChatGPT, critics of that legal framework are likely to get what they have long wished for: a regulatory model that makes tech platforms responsible for online content.
The question is whether the benefits of this new reality outweigh its costs. Will this regulatory framework minimize the volume and distribution of harmful and illegal content? Or will it stunt the growth of ChatGPT and other large language models (LLMs), litigating them out of mainstream use before their capacity to have a transformational impact on society can be understood? Will it tilt the playing field toward larger companies that can afford to hire massive teams of lawyers and bear steep legal fees, making it difficult for smaller companies to compete?
In this article, I explain why current speech liability protections do not apply to certain generative AI use cases, explore the implications of this legal exposure for the future deployment of generative AI products, and provide an overview of options for regulators moving forward.
Texas Invokes Invasion Clause In Rio Grande Case
"In view of this constitutional authority, this Court should construe the Rivers and Harbors Act narrowly to avoid the constitutional questions presented by the interaction between the State’s constitutional authority to repel invasions and the Rivers and Harbors Act."
Recently, Texas installed a 1,000-foot-long floating buoy system in the Rio Grande. The United States filed suit against Texas. (For those playing at home, the suit was field in Austin, where the Capitol sits, and not in the Rio Grande valley, where the case arose.) DOJ argues that Texas has violated the Rivers and Harbors Act, which prohibits placing certain structures in navigable waters. Texas has now filed its reply. Texas makes several arguments based on the statute:
The segment of the river where the buoy system has been deployed is not navigable; even if it were, the buoy system does not decrease the navigable capacity of the river; and the buoy system is not a boom or other structure prohibited under the Act.
However, Texas also makes an alternative argument based on constitutional avoidance:
Because Texas has a federal constitutional right to defend itself against invasion from even non-state actors, the Court should construe the Rivers and Harbors Act narrowly to avoid a collision between that constitutional right and the federal statute.
The constitutional provision at play here is somewhat obscure. Article I, § 10, cl. 3 provides, "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." The Invasion Clause, on its face, seems to give the states additional authorities when they are "actually invaded." Governor Abbott argues that he, as the Commander in Chief of the state, has the power to determine whether there is an invasion. And Abbott has made such a declaration.
The brief provides some history about the Invasion Clause:
Texas's sovereign power is not limited to repelling invasions by state actors. By its terms, Article I, § 10, Clause 3 applies to all types of invasions, including invasions from non-state or quasi-state actors, like the cartels. Indeed, throughout American history, States have had to use military force to respond to hostile non-state actors. For example, James Madison explained at the Virginia Ratifying Convention how state militia were customarily utilized: "There were a number of smugglers, who were too formidable for the civil power to overcome. The military quelled the sailors, who otherwise would have perpetrated their intentions." 11 James Madison, Debate From Virginia Ratifying Convention (June 16, 1788). And in 1792, Congress exercised its power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," U.S. Const. art. I, § 8, by authorizing the President to call forth the militia "whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe." An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions, 1 Stat. 264, 2d Cong., Sess. I, Ch. 28 (1792) (emphasis added). Congress reenacted the same provision in 1795. See An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the Act now in force for those purposes, 1 Stat. 424, 3d Cong., Sess. II, Ch. 36 (1795) ("imminent danger of invasion from any foreign nation or Indian tribe"). Any notion that "invasion" somehow hinges on the difference between state actors and non-state actors would seem wholly artificial to the Framers: After all, the Constitution gives Congress power to "grant Letters of Marque and Reprisal" authorizing private actors to cross international borders to commit hostile acts. U.S. Const. art. I, § 8, cl. 11.
The brief also cites several founding-era dictionaries to define the word "invade" and "invasion."
Texas argues that the court should avoid any reading of the Rivers and Harbors Act that would run afoul of the Invasion Clause.
In view of this constitutional authority, this Court should construe the Rivers and Harbors Act narrowly to avoid the constitutional questions presented by the interaction between the State's constitutional authority to repel invasions and the Rivers and Harbors Act. See United States v. Hansen, 143 S. Ct. 1932, 1946 & n.3 (2023) (applying constitutional avoidance in immigration context). "Under the doctrine of constitutional avoidance, '[w]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.'" Hersh v. U.S. ex rel. Mukasey, 553 F.3d 743, 753–54 (5th Cir. 2008) (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988)). Here, the State has deployed the buoy system to prevent cartels from trafficking an unprecedented number of aliens, an unknown number of terrorists, and illegal drugs such as fentanyl across the Rio Grande. To prevent a collision between the Rivers and Harbors Act and the State's constitutionally guaranteed right to protect itself, the Court should hold that the terms of the Rivers and Harbors Act do not apply here.
I have not given much thought to the Invasion Clause. Nor have the courts--until now.
Political Activist Brandon Straka Loses Jan.-6-Related Libel Lawsuit Against NBC
"The material challenged in the plaintiff's complaint cannot be understood by a reasonable person as anything but substantially, if not literally, true."
From Judge Joseph Bataillon's decision Tuesday in Straka v. NBC Universal Media, LLC (D. Neb.):
In his complaint, the plaintiff, Brandon Straka, alleges that NBC Universal published statements on primetime cable television that singled out Straka and falsely accused him of criminal conduct in connection with events that occurred on January 6, 2021, at the Capitol in Washington, D.C…. {Specifically, the plaintiff alleges NBC Universal employees Chris Hayes and Ari Melber made materially false statements on cable television programs that that Straka committed the "Federal crime of storming the Capitol;" that NBC Universal misattributed statements to Straka that he never made; that NBCU falsely stated that Straka "[broke] into the Capitol" on January 6, 2021; and that NBCU falsely stated or implied that Straka was "convicted" of "trying to help attack police officers" and that he "confessed" and was found "guilty" of "helping attack police."} …
[Public records] show that the plaintiff entered a plea of guilty to count one of an information charging him with Engaging in Disorderly and Disruptive Conduct in the Capitol Building or Grounds, in violation of 40 U.S.C. § 5104(e)(2)(D). In the plea agreement, he acknowledged that the attached Statement of Offense fairly and accurately described his actions and involvement in the offense. He agreed and stipulated to the factual basis for his guilty plea and agreed that if the case were to proceed to trial, the United States could prove the agreed-to facts beyond a reasonable doubt. The Statement of Offense provides that Straka "knowingly entered the restricted area at the U.S. Capitol Grounds." It further provides:
While in the restricted area, knowing he was not authorized to be there, Straka observed the crowd yelling and U.S. Capitol Police trying to prevent people from going into the U.S. Capitol and to manage the unruly crowd. Amongst other things, he engaged in disruptive conduct by participating, along with others, in yelling "go, go, go" to encourage others to enter the U.S. Capitol while the U.S. Capitol Police were making their best efforts to prevent people from doing so. Straka also observed others yelling to take a U.S. Capitol Police Officer's shield. He recorded a video of what was happening, and in the video, he chimed in with the crowd, saying "take it, take it." He did this between 2:30 and 2:45 p.m. on January 6 while outside the entrance to the U.S. Capitol in the restricted area on the Capitol Grounds. Straka left the U.S. Capitol Grounds at approximately 3:00 p.m.
"Denmark and Sweden's Commitment to Free Speech Is Wilting in the Face of Quran Burnings"
Here's an excerpt from the article, by free speech historian Jacob Mchangama, writing in Time:
On July 30, Danish Foreign Minister Lars Løkke Rasmussen announced that the government will seek to enact legislation for "special situations where other countries, cultures, and religions could be insulted, potentially resulting in significant negative consequences for Denmark." Sweden is mulling over similar actions….
The next day after the Danish government´s promise to explore legal remedies against Quran burnings, the OIC [Organization of Islamic Cooperation] released a strongly worded statement admonishing Denmark and Sweden for failing to immediately criminalize them and pledging to continue to pursue the matter…. [O]nce democracies yield from principle, authoritarian states will not respond with gratitude and conciliatory attitudes but demand that the self-imposed restrictions on free speech be expanded more broadly. …
Earlier this month, the OIC managed to secure a crucial win at the U.N.'s Human Rights Council with a resolution that calls on member states to, among other things, "address, prevent and prosecute acts and advocacy of religious hatred" as a direct response to the Scandinavian Quran burnings. The OIC argues that defamation of religious ideas and symbols constitutes incitement to religious hatred—a category of speech prohibited under international human rights law and in most European democracies. This would not just legitimize but also give legal teeth to the suppression of religious dissent, and would remove the stigma from countries where blasphemy and apostasy is severely punished.
This marks a radical departure from back in 2011, when the Obama Administration rallied democracies around the world and spearheaded a pivotal Human Rights Council Resolution to halt the OIC´s long-standing efforts to internationalize blasphemy laws….
Journal of Free Speech Law: "Negligent AI Speech: Some Thoughts About Duty," by Prof. Jane Bambauer
Just published, in our symposium on Artificial Intelligence and Speech; more articles from the symposium coming in the next few days.
The article is here; here is the Introduction:
Careless speech has always existed on a very large scale. When people talk, they often give bad advice or wrong information. The scale was made more visible by the public Internet as the musings and conversations of billions of participants became accessible and searchable to all. This dynamic produced a set of tort and free speech principles that we have debated and adjusted to over the last three decades. AI speech systems bring a new dynamic. Unlike the disaggregated production of misinformation in the Internet era, much of the production will be centralized and supplied by a small number of deep pocket, attractive defendants (namely, OpenAI, Microsoft, and other producers of sophisticated conversational AI programs). When should these companies be held liable for negligent speech produced by their programs? And how should the existence of these programs affect liability between other individuals?
This essay begins to work out the options that courts or legislatures will have. I will explore a few hypotheticals that are likely to arise frequently, and then plot out the analogies that courts may make to existing liability rules. The essay focuses on duty—that is, whether under traditional tort principles (which have historically accommodated and absorbed First Amendment principles)—courts should even entertain a case. Where there is no duty, a claim will fail early even if the plaintiff would be able to prove a lack of reasonable care, factual and legal causation, and damages.
In the end, I conclude that existing duty rules, if not modified for the AI context, could wind up missing the mark for optimal deterrence. They can be too broad, too narrow, or both at the same time, depending on how courts decide to draw their analogies.
