And I mean, fundamentally, we're talking about expressive tools that are allowing users to create content, right?

Yeah, and so I always get very concerned when someone says there's no First Amendment protection for this speech that I don't like, because the Supreme Court has repeatedly said that's not how we do things, and they've been pretty good.

There are starting to be some cracks in that belief, but overall, they've been pretty good at saying, "We're not gonna keep carving out what we don't like." And I mean, I'll give you one example that's not AI related.

This was back in 2021 when there were all the concerns about COVID misinformation, and there were members of Congress who proposed a law called the Health Misinformation Act, which is, like, this dystopian-sounding law, and what it basically said is that for platforms that algorithmically promote, which is pretty much how platforms operate, health misinformation, they lose their protections from liability under Section 230.

And you say, "Okay, well, what's health misinformation?" And you look in the definition, and it says it's defined in guidance by the HHS secretary.

So I really started raising alarms about that and saying, you know, that this is really concerning.

And I was on a panel with someone who was a supporter of the bill who said, "Well, the current president, we trust his administration." And I said, "Well, could you ever imagine a scenario where there's someone else in office and you might not agree?" And the point is, you shouldn't agree or disagree with them.

You can imagine how they would use these laws to maybe go after people that are creating software for those communities or more niche interests.

Do you think that xAI has a strong case here? Are there other examples that you can point to maybe in other states?

So I, I think that, um, there are a lot of really unsettled legal questions that I think will come out from this case as well as other litigation in the near future.

I think, uh, xAI does have strong arguments for a few reasons.

First is- As I said, it, uh, applies regardless of the technology provider's state of mind.

Uh, so even if it's saying, you know, "We really wanna take steps to cut down on the use of, of this technology for these purposes," they could still be liable.

Uh, the definition of an intimate part, which is basically what triggers the liability, is very broad.

It includes, for example, if someone's intimate thigh.

Does it cover perhaps AI chatbots? Are users' rights prioritized?

Do you think that xAI has a strong case here? Are there other examples that you can point to maybe in other states?

So I, I think that, um, there are a lot of really unsettled legal questions that I think will come out through this case, as well as other litigation in the near future.

I think, uh, xAI does have strong arguments for a few reasons.

First is that, as I said, it, uh, applies regardless of the technology provider's state of mind.

Uh, so even if it's saying, you know, "We really wanna take steps to cut down on the use o- of this technology for these purposes," they could still be liable.

Uh, the definition of an intimate part, which is basically what triggers the liability, is very broad.

It includes, for example, someone's inner thigh.

Does it cover perhaps AI chatbots? Are users' rights prioritized?

What was going on that expanded speech so much in, in America and the West?

So we had a solid core of Supreme Court justices who applied neutral principles to very difficult cases.

And in the book, we go through this, and we look at four particularly hateful men who had speech that most people would not stand up and say, "I agree with," or, "I, I will defend the merits of this speech." But, uh, they brought their cases to the Supreme Court for various reasons.

The first was someone named Jay Near who, in the 1930s, published a really vile anti-Semitic newspaper in Min- Minneapolis, and the district attorney got an injunction to shut it down under a public nuisance law.

And the Supreme Court, in a five-four decision, these were mostly close cases, not all of them, uh, the Supreme Court said, "No, you can't do that.

That's a prior restraint on speech, and that's one of the most abhorrent things that the government can do to speech, to stop it from ever happening." And you might think, "Well, why would you wanna defend Jay Near and what he was doing?" Well, that precedent would be cited in so many other cases involving prior restraints, including the Pentagon Papers case, that the Supreme Court relied on that.

Uh, we talk about someone named Arthur Terminiello, who's a defrocked Catholic priest, who gives a speech, an anti-Semitic speech, in Chicago that causes riots outside, and he's charged, and the Supreme Court overturns his conviction.

Uh, what, what was the import of that decision, and where are we kind of standing now when it comes to the issues that were raised by it?

... and you can't really change people's thinking when it comes to this issue.

issue.Yeah, a-and I-I'm not gonna say why people take that approach, and again, they, they might...

I-I-I think many of them don't have any nefarious motives.

They just think, you know, "This speech is so bad that we have to do something." And th-this is actually, uh, how I got the title for my previous book, Liar in a Crowded Theatre, um, because that, that book is about why the First Amendment protects most, most false speech and what the different rationales are for false speech being protected in the United States.

And the reason I titled it Liar in a Crowded Theatre was I, I actually came to that title pretty late in the writing process because as I read all of the court documents in these cases where the government or litigants were trying to punish or suppress what they viewed as false speech, time and again, the justification by the censor was, well, just as you can't yell fire in a crowded theater, you also can't say X, Y, or Z, when in fact, you usually could say X, Y, or Z.

And, um, fire in a crowded theater really became a proxy for, well, yeah, we have free speech, but there is something-- there are some things that are really bad that we've got to be able to suppress, and, uh, free speech has limits.

And even in the United States, which really has extraordinary protections for freedom of speech, it-it's true that the First Amendment i-is not absolute.

What is unique about America that it came up with the First Amendment, and that hasn't been followed in the rest of the Western tradition?

They've all developed

their own policies and procedures in terms of taking content down and keeping it up.

And it's very much been a market-based system in making that determination.

And they've been able to do that because of Section 230.

So it's not... an accident that so many of the biggest success stories of the internet are based in the United States because we have Section 230 and the other countries have much weaker protections for

Ten-year-old Nyla Anderson died after taking part in a so-called blackout challenge, which went viral on TikTok.

Sometimes the platforms really were fairly negligent in what they did.

They ignored safety warnings and hazards.