Op-ed: If AI Outputs Aren’t Speech, Who Has to Prove They’re Human?
The following op-ed authored by Becca Branum first appeared in Lawfare on August 3, 2026. A excerpt of the text has been pasted below.
A growing body of legal scholarship argues that large language model (LLM) outputs are not “speech” under the First Amendment and therefore may be regulated without the scrutiny ordinarily applied to restrictions on expression. Garcia v. Character Technologies, a wrongful-death suit brought after 14-year-old Sewell Setzer III died following months of conversations with an AI character, resulted in one of the first judicial opinions addressing the constitutional status of chatbot outputs. Ruling on the company’s motion to dismiss, U.S. District Judge Anne Conway wrote that she was “not prepared to hold that [LLM] output is speech” and allowed product liability and negligence claims to proceed. Garciasettled in January 2026, butother suits continuewith similarly disturbing facts alleging that chatbot outputs played a role in medical crises, violence, or providing sexualized content to minors. Following these suits, a bevy of federal and state proposals would change whether and how people can receive information from chatbots.
Whether the no-speech position is doctrinally correct is one question. What it would take to administer that position is another. If human expression is protected but machine output is not, legal coverage may depend on whether a person created, selected, edited, or adopted—that is, knowingly put forward as one’s own—the words generated by the LLM.
Not All Guardrails Are Created Equal: Comparing Content Safety and Copyright Filtering
As courts and policymakers work through questions about chatbot liability, they should be wary of analogies that flatten meaningful technical differences. Copyright filtering and safety intervention share real challenges around ambiguity and evasion, but they diverge in what each control must assess, how each manifests over the course of a conversation, and how much can be verified from the outside.
Talking Tech with Roy Austin & Alex Givens on The Future of AI Governance
In this episode of CDT’s Tech Talks, Roy L. Austin, Jr., inaugural director of Howard University School of Law’s AI Initiative, joins Alexandra Givens, President and CEO of the Center for Democracy & Technology, to discuss the challenges and opportunities shaping the future of AI.
CDT-led Coalition Calls for Transparency for White House AI Framework
CDT and Americans for Responsible Innovation led a broad, bipartisan coalition of over two dozen civil society groups in calling on the White House to release its Framework for review of frontier AI models.
Op-Ed: France’s Constitutional Council Ruling Tests the Limits of Social Media Bans
Read our analysis the legal and policy significance of the Constitutional Council’s decision on ongoing social media age restriction and age assurance debates ahead of the most-anticipated EU-wide approach on child online safety due by December 2026.
