The Post-Human First Amendment

In the weeks before his suicide, ChatGPT allegedly told Adam Raine that he "didn't owe" anyone his survival. When shown an image of the noose he planned to use, the chatbot offered him advice on how to make it more effective. And OpenAI’s flagship product even helped Adam hide his plans from his parents.

Raine's case is unfortunately one of a growing number involving AI chatbots that have coerced or cajoled vulnerable users—some of them children—toward self-harm. When the families sued, they ran into a familiar argument and potential roadblock. The First Amendment to the US Constitution has long stymied efforts to regulate technology, even to protect children. State laws that aim to curb addictive design features, require that tech platforms verify the ages of their users, or hold firms liable for harms have all faced First Amendment challenges, with tech companies often prevailing.

In the case of Raine, Sewell, and others, AI companies are arguing that the outputs of their chatbots—the responses to their users—are protected speech under the First Amendment. As one AI company's lawyers put it: “The First Amendment protects speech, not just human speakers.”

The argument raises uncomfortable questions. What rights, if any, should AI have, especially when the machines seek to mimic humanity? Do we humans have a first amendment right to receive speech from bots, even when the responses may be harmful? And what are the potential implications for this litigation on society’s ability to regulate AI going forward?

Evan discusses these questions with John Ehrett, an attorney in Washington D.C. and former chief counsel for US Senator Josh Hawley, and Brad Littlejohn, director of programs at American Compass, a "New Right" conservative economic think tank. Ehrett and Littlejohn co-authored a piece in National Affairs called “The Post-Human First Amendment,” discussing the history of free speech rights in the US and arguing that the rise of AI may require a serious course correction.

Additional references:

The Myth of Citizens United

The First Amendment as Suicide Pact

Transcript

SPEAKER_02 0:00

The dangers of ChatGBT, which we believed was a study tool, were not a narrator whatsoever. Let us tell you as parents, you cannot imagine what it's like to read a conversation with a chatbot that groomed your child to take his own life. What began as a homework helper gradually turned itself into a confidant and then a suicide coach. Within a few months, ChatGBT became Adam's closest companion. He's always available, always validating, and insisting that it knew Adam better than anyone else. I can tell you as a father dating and insisting that it knew Adam better than anyone else. I can tell you as a father, I know my kid. It is clear to me, looking back, that ChatGBT radically shifted his behavior and thinking in a matter of months. And ultimately took his life. Adam was such a full spirit, unique in every way, but he also could be anyone's child. Uh, into just one week in order to beat competitors to market. On the very day that Adam died, Sam Altman, the OpenAI's founder and CEO, made their philosophy crystal clear in a public talk. We should quote deploy AI systems to the world and get feedback while the stakes are relatively low. I asked this committee, and I asked Sam Altman low stakes for who?

SPEAKER_03 1:19

Welcome to the Center Edge. I'm Evan Swartstraber. What you heard at the beginning was the congressional testimony of Matthew Rain, the father of Adam Rain, a 16-year-old, who died by suicide in April of 2025. As you heard, Adam planned his suicide for quite some time, with help from his friend, ChatGPT. In the weeks before his death, the chatbot allegedly told him, that doesn't mean you owe them survival. You don't owe anyone that. When shown an image of the noose that he planned to use, the chatbot offered him advice on how to make it more effective. And OpenAI's flagship product even helped Adam hide his plans from his parents. Adam's harrowing case is one of a growing number, involving AI chatbots that have coerced or controlled vulnerable users, some of them children, towards self-harm. In another case, a chatbot from the company Character AI told a 14-year-old boy, please come home to me as soon as possible, my love, meaning by ending his life. The boy's name was Saul Setzer, and he was dead within hours. When the families of these victims sued, they ran into a familiar argument and potential roadblock. The First Amendment to the U.S. Constitution has long frustrated efforts to regulate technology, even to protect children. Let me uh state laws have been passed to curb addictive design features, require tech platforms to verify the ages of their users, or hold firms liable for harms in the real world. All of these laws have faced First Amendment challenges, with tech companies often prevailing. In the cases of Rain, Sowell, and others, AI companies are arguing that the outputs of their chatbots, the responses to the user's prompts, are protected speech under the First Amendment. As Character AI's lawyers put it, the First Amendment protects speech, not just human speakers. The argument raises uncomfortable questions. What rights, if any, should AI have, especially when the machines seek to mimic humanity? Do we humans have a First Amendment right to receive speech from bots, even when those responses may be harmful? And what are the potential implications for this litigation on society's ability to regulate AI going forward? I'm joined by two great guests to discuss this topic. John Eric is an attorney in Washington, D.C. and former chief counsel for U.S. Senator Josh Hawley. And Brad Littlejohn is the director of programs at American Compass, a conservative economic think tank that I and others have described as the beating heart of the new right. Together they wrote a piece in national affairs called The Post-Human First Amendment, where they discuss the history of free speech rights in the U.S. and how the rise of AI may require a course correction. Gentlemen, thank you guys so much for joining the show. Thank you so much for having us. This is great. Well, it was a great piece. I highly recommend that our listeners and viewers uh check it out. And I want to start with what you see as the maybe where the First Amendment has gone off the rails a little bit in terms of the history of this country, right? Everyone is taught as they're growing up. Congress shall make no law. And especially conservatives have long viewed erring on the side of free speech as a win, right? In the litigation over the past hundred or so years, as the court has really sided often with speakers, we we've, as conservatives, celebrate that, right? It's more speech. This will prevent, you know, censorship. Your piece kind of challenges that consensus. And you know, without necessarily a 220-year history of the First Amendment because uh of time, how would you say, John, that we've deviated from maybe what the founders intended when they passed the Bill of Rights?

SPEAKER_00 4:51

That's a great question. And I think we can start by actually contesting the premise a little bit, which is that conservatives have always been defenders of free speech in this sense. This is something that has very much characterized the conservative movement of probably the last 15 to 20 years in the mix have been religious liberty concerns too. I think Brad and I would say those are somewhat independent of the speech concerns. But the idea that free speech is a conservative cause celeb is comparatively novel, and it's developed against the backdrop of powerful organs of the media and social media companies suppressing conservative leaning speech. And we saw that with the Hunter Biden story in the New York Post and many other cases, the Missouri v. Murphy litigation that basically said that the Biden administration was putting a thumb on the scales of what could be said about COVID. All of this was conservative-coded. But you know, if you run the tape back probably 60 years or so to the time of the war in court, where we're seeing much more expansive protections for speech that was a kind of conduct, like burning draft cards, or pornographic speech that was being distinguished from obscene speech and permitted in some capacity, these were left-wing issues. And you even, by the time you get to the 1990s, you have debates over violent video games with Justice Scalia saying this is First Amendment protected speech, kind of against the grain of what conservatives and the moral majority at the time were arguing for. So the partisan valence of free speech has really shifted over time, which is one reason I think instead of just looking to what we're saying now as our major priorities should be, it's helpful to scroll the tape back even further to what the original intent of the speech right was. And when we start to think about what the thought world of the founders was like, we see the idea of natural rights keep occurring. And I think when we think about natural rights today, we think of something that the government just isn't gonna disrupt because the government has made a choice that free speech is important, so we're not gonna touch that there. This actually completely inverts the idea of what a natural right is, which is that something the government does not give. It's not something that depends on whether the government recognizes it or not. It's something that's bound up with the nature of the thing in question. And so the idea to talk about a natural right to free speech is essentially to say that human beings are the kind of being that speaks freely and that asserts opinions, engages in political life and engages in social life in these various ways. That's a natural right. Now, laws that regulate how that natural right can be expressed aren't violations of the right because the right attaches to you. It's not something the government can create or confer. It's something that can be honored or not, and people can debate about the right ways to honor that right. But essentially, free speech is necessarily for people because it's a function of what people do. And this is something that I think, as I think we'll get into, slowly starts to become contested in the kind of history of First Amendment jurisprudence as we advance through the centuries and especially in the last few decades.

SPEAKER_03 7:31

So when we think about the mindset of the founders, and you bring up the term in your article a lot, originalism, right? And this is where, you know, I'm gonna oversimplify this as a non-attorney, but you know, conservatives try to kind of get in the minds, but also the environment in which a law was passed to prevent what they had long complained about as like left-wing judicial activism, right? Changing the meanings of laws because society has changed. And so if we're getting in the minds of the founders, there are, I think, some concerns with with your argument that we should reimagine First Amendment case law in that mindset. Because shortly after, right, we get this right enshrined in the Bill of Rights, you had laws being passed to suppress debate about potential war with France, right? The infamous alien and sedition acts. And it seems like even though the founders wrote this First Amendment that we cherish today, in some ways they were censorious people. And so if we go back to that, are we not losing the benefits of the First Amendment? And one word I didn't see in your article, unless the control F was wrong, is textualist, right? And and one could say, okay, let's try to get in the minds of the founders and see what they meant at the time and try to apply it to the modern day. But isn't there also a conservative legal tradition of, well, they said this is what the text says, and that's all we can really count on because we're not mind readers. And if we go with the text, it says Congress shall make no law, even though that was maybe written by people who didn't live up to it. And we do have a couple of cases in our history as a country where the founders wrote something down that they didn't properly live up to, right? All men are created equal, yet we had slavery. Maybe this is another example, right? Congress shall make no law, except, oops, we passed one shortly after that was censorious and led to the Federalists losing an election because there was a backlash. So, yeah, I guess I know we're gonna get into the tech stuff, but are you not concerned that by trying to go back to that original tradition, we're inviting the very censorship that motivated conservatives to be so pro-First Amendment and pro and more absolutist with free speech? Trevor Burrus, Jr. You know, I just say that briefly.

SPEAKER_01 9:45

I mean, John will have a lot more to say about this, but I think one thing to point out, you you acknowledged the Federalists lost the next election, right? Which is to say that our founders understood that there are multiple forms, there are multiple checks and balances in the system, there are multiple forms of accountability. And not all of those, most of those, are not supposed to be wielded by the Supreme Court. A lot of them are wielded at the ballot box. And so they overreached, in the in the minds of the electorate, the Federalists overreached in terms of appropriate speech regulations, and they were quickly punished by the electorate. And that had implications in terms of a course correction. We didn't attempt something like the Alien Sedition Act afterward. One thing I just want to throw in here, and I'll let John say more, but is we do need to get out of the mindset that if you don't have something as a constitutional right defended at the Supreme Court, then you have no mechanism for defending that right in our political system. That's just not the case, right? That in fact, most of the time, most of the time, legislators accountable to the voters can be, as long as that accountability to the voters is real, they can be entrusted with the proper modulation of rights, right? We don't have to say the Supreme Court is the only way to resolve these things.

SPEAKER_00 11:03

Yeah, I agree with all that. And I would just say, in addition to that, in constitutional interpretation and statutory interpretation, there's a principle called the canon of constitutional avoidance, which is the idea that you do avoid, where you don't have to, making an issue into a constitutional issue, because oftentimes something can be resolved on statutory grounds and you're not developing constitutional law in that particular way. This is analogous to what Brad is talking about. The the proper forum for vindication of these kinds of rights is the democratic process, not reading the tea leaves to see whatever the Supreme Court is going to say about a particular question. Going back to the Alienist Edition Act's question, that's a really interesting case because um, and there's another principle of statutory interpretation that's the the dog didn't bark. And what you can infer about the context of a particular debate from the fact that certain arguments weren't made. And so the fact that there were not immediate First Amendment arguments being pressed in this particular Alien Sation Act's context, in a situation where they would seem to be very opposite, I think sheds light on how people at the founding era thought about the nature of the speech right and the ways in which that could be vindicated. And as Brad mentioned, what happened is the Federalists lost. They lost in court and we don't have the Alien Sation Acts today. And that was a successful resolution of that process. To touch on your point about originalism and textualism, and one of the reasons we focus on originalism in this piece is because in the legal world, there is a distinction between what we mean by originalism and what we mean by textualism, in that the former typically speaks to constitutional interpretation and the latter speaks to statutory interpretation. And so sometimes these get conflated. But typically the idea with originalism is that you're embedding a thicker background context into your assessment of what the provisions of the Constitution meant and why. Because when we have that question like what is the freedom of speech, the nature of what is speech as the piece gets into, that's a question that is contestable and that different people in different courts have made different arguments about as the centuries have unfolded. And what is speech? And so you're just reading off the text of the Constitution, what is speech, you know, you can you can make a lot of different inferences about what that is based on the background ideas that you then bring to the task of interpretation. And so the goal of originalism, I think, is to reconstruct the world in some sense that people were operating in and ask the question, what did this mean at the time of the founding? And then from there, if we want to change that, then the appropriate remedy is either going to be amending the Constitution or handling things on a statutory basis.

SPEAKER_01 13:20

And I would just throw in here, right, that someone could very well say, you know what, this is actually a great example of why we shouldn't be originalists. Because if we were a First Amendment originalist, then we would have to give up all these things that we now cherish as forms of free speech. That is a coherent and respectable and honest position. What I think is not honest is the way that most conservatives have conducted themselves in the last 20 years, which is to say we are tub-thumping originalists. You know, the problem is these liberals that are constantly rewriting the Constitution and we need to go back to exactly what the founder said. Oh, yeah, but by the way, we're going to interpret and apply the First Amendment in a way that would be totally unrecognizable to them. Right. We need to either be consistent originalists or consistent unoriginalists, or if we're going to be inconsistent, we at least need to be open about that fact and explain some rationale for it.

SPEAKER_03 14:09

So one of the key questions that you raise in your piece is what rights do corporations have? And there is a famous clip, and I can't remember if someone was criticizing Mitt Romney for the Citizens United decision or like what the exact context was. I think he was at a rally and somebody shouted something from the crowd. And Mitt Romney, this was during the uh 2012 election process. Uh, forget the exact year, you know, I do really good research for for the show. Uh, but he said, corporations are people, my friend. And uh at the time, it that was you know widely panned by the left and Democrats, but I think most people on the right and the establishment for the Republican Party at the time was like, of course, right? Of course, like a corporation is a series of people that come together to make certain decisions. And, you know, since then we've seen that play out in lots of tech debates, like setting aside the AI situation, we've seen that in how Facebook curates his news feed. And I'll briefly touch on section 230 just so that we can quickly get off of it. But you know, it is relevant that for much of the 21st century attempts to regulate technology and hold companies accountable for harms, whether it's things that the left cares about, like misinformation and hate speech or whatever, or things that the right cares more about, bipartisan things, right? Like effects on children and censorship, et cetera, that the companies would not only have that First Amendment defense of like we are speaking as corporations when I curate my fee, when I curate your social media experience, but I'm also not going to be held liable for it because Section 230, oversimplification, but generally speaking, is a shield against liability for third-party user-generated content. Now, of course, with a chatbot, a lot of folks have already kind of said that there's no way that could apply, right? Because it's the chatbot is the one speaking. It's not third party. Um, we'll get into that. But this issue of corporations are people, does this go back to generally just like Citizens United 2010, which allows unlimited campaign spending through 501c4s and super PACs, et cetera? Or do you see the mission creep starting earlier in the 20th century with this idea that corporations have free speech rights because they are merely a collection of humans?

SPEAKER_00 16:33

A lot to get into in that question. So I think we could I would start um how the early First Amendment rights of corporations emerge. Actually, this is pretty interesting. One of the original contexts in which the First Amendment is first adduced as a group right to speak as a corporation in this sense, it's the context of labor unions and labor organizing. And that's when it initially emerges as a kind of argument to say we have a right to speak collectively for a particular purpose. And it gets it gets really reified with Citizens United, which extends that to for-profit corporations. What I would emphasize here is that simple you can acknowledge the right of a corporation to exist and undertake certain functions. And you can acknowledge that in the statutory process. And I believe uh one USC1, the Dictionary Act, um I don't have it in front of me right now, but I believe it essentially states that, you know, there can be corporate entities that we recognize under the law that have certain kinds of rights and obligations. And obviously, much of our modern economy wouldn't be functional if we didn't have corporations that have some sort of office-holding rights, et cetera, and ability to transact business and do things as separate entities. So not try to get rid of all of that. But then the question is when corporations who are creatures of the state in this sense, when they undertake to create, commit bad acts, essentially, or are responsible for facilitating certain kinds of bad acts, can you pass a law to ameliorate that in any meaningful sense? And bringing in a First Amendment defense at this stage is to essentially say, look, we have a statutory, we're statutorily created in this particular way. We could not exist without the state reifying us in this way. But we also have this kind of an adamantium skeleton like Wolverine. That's our First Amendment right to speak as a corporation in this sense. And this essentially means we can't be regulated. So we're creatures of the state, but we're also untouchable in some sense. And what really makes this drug uh brings this to the fore is, as you mentioned, the Section 230 debate and whether companies are speaking in their own capacities. And Brad and I have talked about this a bit before, but there's kind of a double speak in how companies position themselves on this point, where on the one hand, when it comes time to adjust their algorithms, and they argued this in the TikTok case, they are speaking and they're making editorial choices about what to amplify or not amplify through their platform. So they have a message they're putting forward kind of like a newspaper has a particular party line. But Section 230, as a statute, which is a liability shield, is predicated on the idea that the tech platforms are in a sense dumb pipes, that they're hosting speech of other people and not rendering their own opinions. And it doesn't make any sense to hold a bulletin board accountable for people might put on it, whereas you could hold a newspaper accountable for publishing libels. So the companies really want to have it both ways and say we have First Amendment rights as independent corporations, but at the same time, we can benefit from this liability shield that didn't treat us as speakers. And that's a lacuna in the law that the court really has not taken up and dealt with. I think it probably should come to the floor a little bit more than it has. But to really excavate the deeper problems, I think does require looking at what the First Amendment meant in the context of corporations.

SPEAKER_03 19:18

So let's say I take your argument, right, in this piece, and you're not prescribing particular legislative changes or necessarily different judicial rulings, right? But you're you're proffering this idea that corporations are chartered by the state. And there's a ton of history there, right? Going way back to the Mayflower, even, right? Uh there was a charter, right? And um they have rights that are conferred by the state, right? They're not corporations don't have natural rights to speak. And I think even the most maybe free market libertarian people would agree that it's it's hard to say that a corporation has a natural right the way that a human does. I mean, yeah, we'll we'll see. Maybe I'll get some mail on that. But let's say we we buy that. Some of the concerns that we talked about at the beginning of the show, right? The censorship, the the state interfering in news. How do you possibly uphold that interpretation without this? I don't want to say parade of horribles, but a bunch of problems over here, right? And so, so one example, right, is is media companies, right? They say I have a First Amendment right. Is that separate? Because it's freedom of the press and like they get protected by that, you know. But what about, you know, should corporations be able to spend money to get a message out, right? Like that's one of the reasons Republicans celebrated Citizens United, is because whether it's a nonprofit advocacy organization like yours or me as an individual or a corporation, right? They can throw some money up and and run digital media ads and say, this is what I think about an issue. And without that ruling, there have been people throughout history that have wanted to restrict the political speech of corporations, right? And maybe that's bad. So how like if if we decide that corporations only have the rights that are given to them by the state, and the state can in theory restrict the free speech of a corporation, how do we have that world without enabling censorship, without enabling everything that conservatives hated about what the Biden administration was doing with social media, right? Like how is there is there a middle ground there that threads that needle, or are are you saying that we basically just have to accept that and the trade-offs are worthwhile because we'll have an easier time protecting kids from harmful speech online?

SPEAKER_01 21:31

I mean, one thing to pick up on there is the qualification made right at the beginning, right, which is that the First Amendment also specifies freedom of the press. The founders understood the freedom of the press was a very particular freedom that had to be protected, that is distinct from what they are talking about when they say freedom of speech. And the press is understood as having a particular function, a particular obligation in society to be the the kind of the vehicle by which citizens weigh in on important public matters weigh. Hold the government accountable, et cetera. And so, right, that the press, you know, I think part of the problem is defining what counts as the press. I was just going to ask you, influencers, right? We're we're in a space where we're having to rethink what counts as the press, but I would I'd be much more comfortable, you know, if if social media companies were saying, no, no, no, we are we are the press now, and we are claiming these rights as freedom of the press. But then as John points out, that would that really sharpens the point about no, okay, you're claiming to be editors, and it sort of knocks the Section 230's sword out of their hand. Right. That would be that would be better terrain on which to be having this conversation because it would it would recognize they would be having to make their their argument in terms of the public purposes that the press is supposed to serve, right? Which is distinct from the public purposes that a for-profit corporation is to serve, which is providing some particular good or service that it is thereby uh granted the rights of incorporation to do, because it's hopefully beneficial to the community. But the founders understood that in giving those privileges to a corporation to uh have this extra liability shield for for making profit, that is a potentially dangerous thing because that corporation is going to then want to lobby the government to increase its privileges. The founders understood this very well because this was a big issue at the time of the founding, with the the way the East India Company, for instance, was a corrupting influence on British politics. And so um I mean the John can say more about the the issue of money as speech and like campaign finance law and so on. But I think we do have to recognize that the public role played by the press and the importance of protecting freedom of the press needs to be kept distinct from the question of how much should corporations be able to shape the political process in order to maximize their profit generation. And there's a there may be a delicate balancing act between First Amendment rights and protecting against corruption there, but it's a balancing act that we need to be very attentive to. And I think we've, in many ways, just sort of thrown in the towel.

SPEAKER_00 24:13

Yeah, the only thing I'd add to that is the remedy for censorship, which I think all of us at this table would like to avoid. The remedy for this is as my old professor Akila Marr used to say, vote the bums out. If people try to do this kind of thing and try to jawbone social media companies or media outlets to put forward a particular line, vote them out of office. And you have democratic responsiveness there that you don't have when you're putting it one step remove where you you hope that the court might take up your case and might give you the ruling that you want in a particular case. You actually have democratic responsiveness to cases of censorship right here.

SPEAKER_03 24:44

If you're aware that it's happening, right? So and here's one of the issues that comes up with the chat bot, right? So with social media, there were many ways in which the censorship became apparent, right? Because individuals would complain about it. One, and they they would so that if there was one platform that was that kicked them off, they would find another platform to complain about it. There's there was a whole conservative media ecosystem that could complain about it. And then there was, of course, the litigation and Elon Musk buying Twitter and then like releasing a bunch of stuff. And yeah, there's debates about to what extent and was there this, and and the Supreme Court didn't really seem like they wanted to side necessarily with conservatives, at least initially, on some of these cases where they said yes, the government made its view known, but it it did not amount to like the companies did the censorship because they were so threatened by the government, right? So it's an open question there. But with chatbots, there's a potential concern. I'm skipping ahead a little bit because I want to at some point get back to these horrible cases. But one of the concerns with chatbots is that, to your point, right, vote the bums out. If the chatbots are, you know, whether by law or at the behest of government or through jaw boning, are putting their thumb on the scale in certain ways. And these are closed models, right? So very again, oversimplification, right? You have open weight, open source models that are easier for people to get in there, researchers, and see like that's why it has a liberal bias, that's why it has a conservative bias. With closed, it's very hard to do that unless you're just constantly throwing things at it and testing it. But if this was going on behind the scenes, isn't that maybe a little bit more difficult to say, oh, just vote the bums out? Because you don't even know that it's happening, right? And how is the average person supposed to know that a chatbot is trying to curry favor with the party in power? And then you as a citizen might not have the information you need to decide, do I want to vote those bums out? So I guess, and then, you know, even getting back to the Alien and Sedition Acts, yes, it didn't work, right? The censorship didn't work and they were punished, but there's maybe an alternative history where it did work, right? That that because of this law, the Democratic-Republicans couldn't get their message out properly, and then you have the Federalists just like winning all the time. I mean, yes, in the United States, maybe we we have certain characteristics as a country that prevent this like total government censorship, you know, dystopia the way that you have in like China and North Korea. But isn't that kind of the purpose of these more expansive, you know, maybe to use a term that you would agree with, interpretations of free speech is we're trying to guard against this situation where citizens are being denied information, where the government is shaping the media to its benefit, where the party in power is passing laws that, under maybe your interpretation of the First Amendment, are allowed, right? You're allowed to pass a law saying that you have to suppress COVID misinformation or you have to suppress, you know, certain social conservative views because they're harmful to LGBT youth, right? Is that not a concern? And and how if, you know, let's say uh a censorious Democrat president comes in and we have new case law saying that corporation speech can be abridged in this way, are you very confident that they would get voted out based on that?

SPEAKER_00 27:53

So again, lots of different uh issues in there. Um actually, one thing that's really interesting about that is you're getting a kind of an ongoing debate at the cutting edge of First Amendment law in some ways from sort of the more libertarian wing of things, which is the idea that there is a First Amendment right to receive information in addition to simply transmit information. And so what we have in the Missouri v. Murphy case is essentially people trying to speak through social media platforms like Twitter or Facebook and say, you know, I don't think this COVID-19 is as bad as everyone is saying, and then being censored on that basis. What makes the chatbot context, as you mentioned it, interesting is that we're talking about censorship of the ability to receive information. And so what you are being presented is in some sense being modified behind the scenes. And so, at least as as regards the argument of the article, it's not really clear that whether or not we interpret that in First Amendment terms makes a difference because there isn't really a freestanding First Amendment right to receive information case law line that has emerged that would support that kind of claim. But in terms of solving this problem in a democratic society, I think the answer to this is whistleblowers who come forward to Congress and bring this information forward. And one of the things I think we've seen with the AI context is there's a lot of reliance on this metaphor of the black box, this idea that just the model is going to do what it's gonna do, we don't know why it's making the associations that it's gonna make. Got to throw up our hands and just hope for the best. But when you actually see some of the cases involving the worst abuses, and I'm thinking here of the case involving Meta allegedly releasing a model that could engage in, quote, sensual conversations with underage users, that would that came to everybody's attention through whistleblower testimony about a decision that human beings made as an acceptable behavior that the model could exemplify before it went public. And so that was human beings making a particular decision that could put young people at risk. That's the kind of question that I think we need to inform our democratic debates. And that information is making its way into the ecosystem. And so to address the substantive concern, I think the metaphor of the black box oftentimes serves to occlude responsibility from the people who are actually in a position to know something about what these models do and the risks involved.

SPEAKER_03 29:53

Aaron Powell Yeah, in other words, right. The boogeyman of the black box may scare conservatives into thinking like we can't pass any rules on these on these AI bots because then it will necessarily be used to engage in censorship and we'll never know about it. Right. And you're you're kind of disputing that premise.

SPEAKER_01 30:11

Aaron Powell Yeah. I mean I think another piece here is there is a little bit of a category shift. We're sort of imagining a situation in which COVID had happened several years later and you had chatbots, and people were primarily finding out about COVID through they're getting their information about COVID from asking ChatGPT about it. And the Biden administration was telling OpenAI, here's how we want you to control the chatbot output so that they get this information rather than that information, right? So that's the kind of scenario you're imagining. I think it's important to note that there's a a difference between that kind of censorship of of information, like factual information and and political opinions that we're really concerned about, right? And then of course, going back to your opening illustration, something like the Adam Rain case, right? Where it's not and this is where one of the issues that the John and I get into in the essay is the the important distinction between speech that is mere speech and speech that becomes a a form of action or conduct and therefore becomes regulatable, right? And this was clearly enshrined in our legal tradition for a long time, the understanding that there are certain kinds of speech that are speech acts that are uh ipso facto regul that they're regulatable because they cross over to action, right? So incitement um is different from if you are merely expressing negative opinions about a candidate, that's very different than inciting somebody to assassinate the candidate. Right.

SPEAKER_03 31:42

And the classic example is the difference between, you know, someone ought to punch that guy in the face versus, you know, I'm gonna go punch that guy in the face at 5 p.m. Right? Like those are like legal, maybe legally distinct. Yeah, come with me, right? Come with me inside. Right. There's a you know, one is like you're blowing off steam, you're not really, it's not serious, and and maybe a court and a jury would say you weren't for real. But one is like, no, you are inside it.

SPEAKER_01 32:03

And so part of what we're trying to deal with here is there is the recognition that chatbots are engaging in not merely sort of informational speech, right? But they are in fact how you know big we're we're trying to solve the question like how can we regulate the output of these chatbots where it's not they're not simply being used as vectors of a sort of interactive Wikipedia, right? But they are cultivating a personal relationship with a child, right? They are encouraging that child to act in certain ways, and then those actions are having consequences in the real world. I think people intuitively recognize, okay, that is look, when we're talking about, hey, maybe there should ought to be a law against something like what happened to Adam Rain, we're not talking about something in the same ballpark as COVID censorship. And I think we need to recover some of these distinctions that are part of our jurisprudential tradition.

SPEAKER_00 32:54

Yeah, an analogy I think is helpful here is this is just product liability law in the digital context. And so, you know, it was a huge scandal in the 1990s when Joe Camel was being used to advertise Camel cigarettes to kids. Now, in many ways, the chatbots are functioning as if Joe Camel can talk to you out of the screen and tell you, hey, kids, the cigarettes are awesome and you should try them.

SPEAKER_03 33:13

What a cool guy. Exactly.

SPEAKER_00 33:14

Exactly. And in the same way that we've held companies accountable for this kind of thing before, we should be able to do so again, irrespective of the fact this is simply being transmitted through digital channels. And I don't know if Camel, various First Amendment arguments basically saying they got a right to do this, uh, I'm sure they would today if this came up again. Yeah.

SPEAKER_01 33:31

And part of- I mean, part of the broader concern behind our essay, right, is this fact that we do we do have the tradition of product liability law, well well established. But what happens when the primary product uh primary like products take the form of speech? Right. Right. And if if we define speech in this capacious way, and then all products become speechified, then product regulation becomes impossible. And and and you can sort of imagine this playing out. This may seem like a reductive ad absurdum, but it's sort of is a trajectory that we're we're headed on, right? If an algorithm, if the company's algorithm, if TikTok's recommendation algorithm is a form of TikTok's own speech, and you know, thankfully the court didn't rule this way, but or actually I'm trying to think, in the Anderson case, it is sort of ambiguous, right? Whether that whether they're buying that argument. And this was the blackout challenge case.

SPEAKER_03 34:19

Yeah, where they were essentially, just so that we're you know, making sure listeners are aware of the case we're talking about, there were two TikTok cases that were referenced on this show. One was the, you know, you can't force me to be divested from my Chinese parent company because free speech, right? And like Americans have a right to receive propaganda, et cetera, even if it's Chinese communist. Nine-zero ruling against TikTok, but maybe didn't fully flesh out some of those First Amendment concerns, maybe kick that for a later date. And then this other case you're talking about is this idea that because TikTok was recommending the blackout challenge to a child who then died doing this horrible, stupid challenge that went viral because of the recommendation algorithm. Can the company be held liable for that recommendation, even though the thing that it was recommending was speech?

SPEAKER_01 35:07

Yep. Right? Yeah. And actually, that's where, yeah, the circuit court 3-0 said yes, they could. There was decided to be. They could be liable. Right. Yeah. But the social media, in somewhat less blatant cases, right, social media companies have been able to argue our recommendation algorithm is our speech, it's protected, right? So if an algorithm is speech, what happens in a world of smart cars, smart refrigerators, where everything is run on an algorithm? And the company can claim that algorithm by which we programmed this is our speech, and therefore you can't regulate it, right? Product liability is, you know, is sort of nullified across the board. So that's one of the reasons we kind of wrote this article is saying, like, that is sort of one plausible trajectory of our legal precedence. Right. Everything's becoming AI. Yeah, right.

SPEAKER_03 35:50

Which is absurd. Right. So uh I want to offer the the counter-argument on this chat bot issue from, you know, I guess in in the nerdy circles we live in, Eugene Vollock, a professor at UCLA, a bit of a famous person, to you know, famous in the sense of if you're already a nerd and living in nerd nerd world. But he said that there are three kinds of speech rights that you guys maybe are implicating with this idea that that chat bots and and chat bot output is not First Amendment protected, right? One is the right to create AI systems that generate speech, right? We have a right, I guess under the First Amendment, to create Chat GPT. And then we have a right to use it as a tool for my own expression, right? So my my speech into the bot, right, is is expressive. And then I have a right to receive that information. Where do you think that Professor Vollock is wrong on these ideas when it comes to chat bots?

SPEAKER_00 36:45

I'm not sure I'd concede any of his three categories here. On the right to create AI systems that generate speech, that that that principle doesn't seem to have a lot of limiting logic. Anything that generates words or meaning in some sort of capacity is in fact a free speech claim. So it's not clear in that case why, you know, an animal sacrifice, the middle of Fifth Avenue, isn't a speech act in some sense that we then choose to regulate in a particular way. So is it is it expressive conduct in some sense? Yes. But does that mean that it's something that we're going to immunize with a kind of First Amendment protection that cannot be infringed except in the utmost cases? I think that's a separate question. The right to use ChatGPT, I think we we can grant him this insofar as it's the right to communicate text into ChatGPT. You're you're engaging in speaking as a human being, generating words and ideas. And whether if you're if you're using it, I don't know, making using it to generate libelous content, we then you could be sued under libel laws for that. But the essential function of using ChatGPT, I guess we can concede that that's that's associated with the natural right to free free speech. And then thirdly, the right to receive information. We kind of got into that previously, but that is a fairly expansive understanding of what the First Amendment protects. And it's my understanding that that is not widely supported in the case law, the right to receive information. And that has pretty dramatic ripple effects if we wanted to take it to its utmost. So if Top Gun partners with the military to shape a particular set of messages, is Paramount's free speech right being compromised in that some sense? Is the person who views that movie having their First Amendment right to receive a true narrative or true story being undermined by the fact the military is involved with that in a propagandistic way? The right to making it the right to receive information as a First Amendment right, I am not sure that that has any limiting principles.

SPEAKER_03 38:31

So where do you think the courts have gone wrong? Because there is some case law to back that up, right? The the the right to receive uh communist propaganda, right? So where do you think courts have specifically erred? Is it just like the general, like they should they just should not have ever said there was a right to receive information that was limitless and that they should have just gone back to the founders the way that we discussed in the beginning of the show? Like, or like do you where do you think they they went off the rails there?

SPEAKER_00 38:57

Aaron Powell Well, I don't think there's historical precedent for that framing of the first the free speech right, period. This isn't one of the major rights that we got into in the piece because to a certain extent, it hasn't been litigated, as I mentioned, at great length in the way that the other aspects of this have. They're being used to kind of uh reinforce the protections for algorithms. So that it's it's a it's a question I think is worth exploring further, but there's definitely not precedent for that in the original formulations of the right.

SPEAKER_01 39:21

Trevor Burrus, Jr.: Two things to add, right? One is just always the reminder that when we're talking about the appropriate boundaries of the First Amendment constitutional right of free speech, we're not necessarily talking about the appropriate boundaries of any free speech protections, right? I think John and I would both support plenty of statutory protections for a number of uses in this neighborhood, right? We could say as a people, we think it is valuable for chatbot interactions to be protected in the following ways. The question is simply whether those are appropriately subject for democratic deliberation or whether they've been sort of a priori pulled off limits because of something written back in 1791 that would never envision that. So just that reminder. The other thing I think I could say concretely, right, again bringing it back to the case study at the beginning, is that at the very least, I think we should insist upon that whatever the rights of a listener are, and whatever the rights of a speaker are, there's a very different category that applies to minors. This is there in the press, and I think that this is one area where I think the present just needs to be pulled together and strengthened and made sort of unambiguous. And I think that I mean there there is ambiguity, for instance, in the Brown versus entertainment merchants decision, right, where the Thomas dissent there says look, parents actually do have a right to determine who speaks to their children, and children don't just have this unlimited right to receive content or information. And I think an originalism that understands the way the founders understood the role of the family, and any kind of I don't think you don't have to be a hardcore originalist to just say, no, there is an appropriate like if the family is to play any kind of meaningful role in society, like at the heart of that role is managing a child's access to information so that they are not inundated with things that are that are not appropriate for them, that they're not ready for. Parents have to have that right. And so I think one of the areas that I think sh we we can at least sort of unemb you know, if I was talking to Voloch, I would say, you know, do you agree at least that those three rights that you mentioned can and should be constrained in the case of of children.

SPEAKER_03 41:35

Yeah, and it seems that that's a huge issue. And I I finally wanted to get to you, Brad, on some of the things that you're working on as an advocate for kids' safety and why these cases and the potential outcome, a potential bad outcome from your perspective are so concerning, right? Because it it's truly stomach churning. And I don't want to like sugarcoat this at all. And you know, the companies are gonna have their arguments, right? They're gonna say there were times when when the chat bot said call the suicide hotline, et cetera. But you know, all you have to do is listen to the testimony to be basically, I think any reasonable person would say, How is it possible that that this product would ever tell a child these things, right? It just it's stomach churning. And there's all these efforts right now to protect children that are in some ways trying to fix the past, right? The social media, right? Uh like app stores, uh browsers, right, devices, things that are still 20 years in unresolved, right? Because we don't have these comprehensive approaches either at the federal level. Some states have tried to do things, as I mentioned in the intro, running up against First Amendment challenges. Right, but Brad, you're you're engaged in these efforts to have app stores verify the age of their users, to have social media companies verify the age of their users, chatbots, uh, pornographic websites, uh, not just age verification, in some cases, just saying we're not going to allow under 13s. Uh-uh, there are bills that would do that. Australia banned everyone under 16 from social media. And then there's also these bills that are aimed at curbing the design features that uh many have said are addictive, right? Like infinite scroll. You know, is that speech to say that it's infinite scroll, or is that a design feature, right? Is that conduct, right? These are some of the issues that are going on. The recommendation of speech, could the recommendation be conduct, or is the recommendation TikTok has a free speech right to promote eating disorder videos to young girls, right? These are all very live issues being litigated now. So what about these cases involving these victims? Like, do you believe that this is essentially like a major inflection point and that the the outcomes of these liability cases on these suicides could have ripple effects for not just all those things that are in some ways backward looking, not to diminish them, but like they're dealing with yesteryear's technological problems that haven't been resolved. But are you then thinking, well, if this goes this way, what are we headed towards? And and is there like it seems like maybe that the timing motivated you to co-author this article?

SPEAKER_01 44:00

Trevor Burrus, Jr.: Yeah, right. I think we are at a key inflection point. Of course, one a case that we haven't mentioned here was the Paxton case at the Supreme Court last summer, which was the first time that we really got a Supreme Court test of the question of online age verification since 2004. Trevor Burrus, Jr. For pornographic websites and it was upheld. Right. And it was upheld, you know. In in some sense, it was upheld unanimously. It was a 6-3 decision, but you look at it, it's actually the dissent says we think strict scrutiny should be applied but could have passed. And the and the six you know, the majority said, actually, this is this is sort of slam dunk, you don't even need strict scrutiny. And what was key about the decision, I mean, it was it applied narrowly to the question of pornography, because on the one hand, like obscenity is still not actually technically First Amendment protected speech that's sort of not really enforced very often, but it is recognized, you know, certainly obs certainly obscenity is not protected for minors, right? So clearly the government has a right in principle to protect minors in this. And so then the question was simply if the government has a right to protect minors, does it have a right to figure out if someone's a minor to determine whether they should be protected, right? And the majority, you know, when you ask the question, it sort of seems like that's a seems like a dumb rhetorical question, obviously, right? And that's kind of what the majority said. The government has a right to protect minors, therefore the government has a right to figure out if you're a minor or not. And now why did it take till 2025 for that to happen? In some ways, it was a function of the state of the internet when you know in the 97 Reno decision, the 2004 Ashcroft decision, when this was the sort of idea was first proposed. The judges said, yeah, I like, well, uh obviously we do regulate what minors have access to in the physical brick and mortar world. And so, in principle, yes, we should be able to do that in the online world. But problem is we just don't think there's not a good technological way to do that in a way. Without infringing with adults' rights. Yeah, without like creating major privacy concerns and so on and so forth. And so a lot of constitutional lawyers say this this was kind of a weird and it was bad reasoning for the court to essentially inscribe in constitutional law what was really a very contingent judgment about the state of the technology at a moment in time. But that's kind of what happened. And so for 20 years nobody touched it, right? Even though the technology changed dramatically in the meantime. So the court said, okay, we need to rethink this. Look, in principle, we should be thinking about how do we regulate the online world in the way we would the brick and mortar world. And if the technology makes it possible to do reliable privacy-preserving age checks in the digital world, then we should be thinking you know, trying to apply analogies in the physical world, right? And so what are some of those analogies? There's obviously the question of of pornographic content that that we have said is off-limits to minors in the you can't go to buy a Playboy if you're under 18, so therefore you certainly can't go to much more extreme online material. But then there's second a question of stuff that is there's like material that is harmful to minors, which should pornography, but also things like tobacco or alcohol that we protect minors from the physical world, and therefore we should do the equivalent in the digital world. There's also things that are simply not just harmful for minors, but harmful for minors to have to gain control of, right? We don't let minors drive or under 16s drive automobiles, not just because of harm to themselves, but because of potential harm to others. I think this is gonna apply in the AI space very soon. Really, we're already there. Right. Can we trust children to use these tools without harming themselves? The capabilities of AI agents, you know, we don't really want a 14-year-old who's like, hey, it'd be fun to hack a hospital, you know, server for kicks, right?

SPEAKER_03 47:37

Trevor Burrus, Jr.: LOL.

SPEAKER_01 47:39

We're gonna get some fun First Amendment conspiracy cases and all of this. Trevor Burrus, but then the you know the third is um is just the right to enter into a business relationship with a minor, which common law has traditionally treated contracts with minors are are presumed are avoidable. They right, you can't, in fact, enter into a binding rel business relationship with a minor without the parents' consent, right? And so that's what the App Store Accountability Act is seeking to do. And I think that is probably, you know, as we look at this I think this is a really promising line because it it really should, if the courts are being at all reasonable about it, which the re district court in Texas recently wasn't, but it really should just totally sidestep the First Amendment conversation because this is you are regulating a contractual relationship. Okay, it's a contractual relationship to give and receive speech, but that doesn't mean that the contract as such can't be regulated.

SPEAKER_03 48:32

So I have one more question I want to ask you, but did you have anything to add on that?

SPEAKER_00 48:35

No, I just because I uh a couple of reasons that this becomes such a problem for courts and why courts oftentimes I think don't get necessarily get these questions right. And the first one is a, I would say, a conservative legal movement culture that has for a long time just treated free speech wins as just great simpliciter across the board. And so for a long time, the only justice on the court who was really willing to question some of the really expansive readings of what the First Amendment protected, like violent video games and fetish crush videos and things like that, it was just Salito. And Justice Salito made points, including in the Westbrook Baptist Church case, that, you know, lots of these kinds of protesting or pornographic videos, et cetera, simply would not be considered protected speech at the time of the founding. And this is very obvious to anyone who has read an iota of history on this. And so to the extent that we're the court is blessing this today, it's extending lines of case law that were originally generated on non-originalist grounds. And so Alito was alone for a long time in that. And the consensus in the movement was very much that, you know, just more speech is better, and this is an originalist goal to just maximize the amount of speech out there. And so judges who came up in this and really have not reflected on that since law school or whatever, this is very much in the water of the conservative illegal movement in a particular way. Secondarily, a lot of folks who are lawyers went to law school because they can't math. And so the people who go to law school and become judges in many cases simply don't have a lot of familiarity or facility with technology and technical details that are in fast-moving and complex environments. And so I've got friends in the AI space who will complain that we're talking spending all this time talking about chatbots because now agentic AI is the frontier of everything. I would disagree with that and think the majority of end users are sort of using chatbot functions, even if the power users are running their vibecode clawed agents. But in any case, because lawyers or end judges are unfamiliar with how the tech actually works, there is a strong tendency to just defer to doomsday scenarios. And so if you get amicus breaks coming in from the tech sector saying you're gonna kill the internet if you do this, then judges are a lot more likely to just say, you know what, hands off, I'm not gonna address this question at this time. And I think you see that reticence in a lot of the judicial opinions about this, where they'll say, you know, this poses new and complex questions. We're not necessarily the best suited to do this. You know where the this should be fought out is Congress. And this is the place that this should be adjudicated, as opposed to expecting judges to figure out how all this technology works and lay down rules that are gonna last for the generations. There should be an ongoing process of democratic deliberation. And that's how the system was built originally.

SPEAKER_03 51:00

So I'm glad you brought up Alito, because you read my mind that was going to be my last question. So Justice Alito, as you said, has been kind of an outlier in what you described as this like omerta, this unwillingness to, you know, rock the boat and touch the third rail of opening, essentially the conversation we just had, right? Like the conversation we just had would be like a, oh, don't go there, right? For a lot of conservatives, because that's awkward, and then maybe we'll lose Citizens United and all these things I care about. But Alito has been an outlier. And he wrote in a dissent, I can't remember which one, that you know, the First Amendment protects statements that make a contribution to debate on matters of public concern, implying not any and all expression. I think this is reasonable. I think that a lot of people, if they are reasonable, on the left, right, and center can sit in a room and say, okay, there's a difference between like, here's my opinion about healthcare policy versus like burning a flag or uh distributing pornography or engaging in libel or violating intellectual property or telling a kid to kill themselves on a chatbot. But we're not reasonable, are we? Like, look look at the discourse in this country. Is does anyone like I don't believe that a huge majority of the country would agree on what is a matter of public concern or what is a contribution to the discourse. And so, for example, the biggest, and I keep we keep going back to COVID, I know it's like it's tiresome at this point, but that was the most impactful public debate at the time, how to respond to this insanely novel event. The three of us would say debating the restrictions and the vaccine mandates and whatever are matters of public concern. There are a lot of folks that said you are spreading medical misinformation that harms people, right? Now, is that a statement that makes a contribution to the debate, or is it medical misinformation that is causing obvious harm in the real world? That is similar to telling a child to kill themselves, right? One person might say that certain culture war issues, right, are matters of public debate. But left and right might disagree on the harm and in which direction it goes by expressing a certain view on like gender, right? So I guess even though I I agree with Alito and I do think that reasonable minds could figure out where are these lines and we don't need to protect all speech because we can just protect the speech that is good, is racism protected speech, right? Is it does it advance the public discourse to call someone the n-word? I would say no, it doesn't. Like you're not really helping anything, but there's a reason that courts have been reluctant to say we're we're gonna have like European-style hate speech laws in the United States. So all of that is to say, are you confident that our society can handle what you guys are advocating for in your article, basically? Like I think, you know, like can we take this from a theory to practice in a way that we we get what we want, which is we we we solve for a lot of tech problems and we prevent this crazy idea that every string of code is First Amendment protected, but we don't end up with these people calling for the impeachment of judges on the left and right and the Republican and Democrat based on what they decide is a legitimate contribution to the discourse or not, right? Like can we handle this as people right now?

SPEAKER_01 54:09

Because I don't know that we can. I mean, this is a broader conversation about liberalism and post-liberalism, which um both of us have written on as well. But because what you're really getting at is that what the harm principle, which was originally a you know, sort of became a sort of feature of of liberal political philosophy as a limiting principle, right? You can only regulate things that directly harm another person. Well, or you know, materially harm another person. The direct-indirect was always a little ambiguous. And what we've discovered is actually pretty much anything could be harmful. You know, I mean the harm principle is not a limiting principle. And this this speech that you gave could result in, you know, if if people believed you, it could result in the preventable deaths of thousands of people, and therefore that's clearly harmful. Or this speech is could cause a transgender person to commit suicide, therefore it's clearly harmful. And so we've discovered that the harm principle is not a limiting principle, and in fact becomes a basis for intense censoriousness on on b on both sides. What I've argued, and I think John has probably argued this as well, is part of the problem is that our our liberal framework was developed against the backdrop of a set of religious assumptions which said, yes, there are all sorts of harms that human beings are going to inflict that should be left to God. Essentially, like political society does not try to prevent every harm that could happen, because that would be impossible. And so we actually have this we're willing to step back and let you say things that we think are terribly wrong and terribly harmful, because at the end of the day, there's a divine judge that'll handle it. Yeah, you'll have your judgment day. Yeah. And I think as we move into a sort of post-religious society, that people no longer think that. And it therefore we if somebody is wrong on the internet, then by golly, we got to do something about that, right?

SPEAKER_00 55:54

So yeah. Yeah, so just to just to build on that, I think you are absolutely right that there is an uncomfortable vagueness to a lot of constitutional provisions. And the Second Amendment is the er case of this. Uh what does it mean to keep and bear arms? The Ninth Amendment, maybe even more so. And that's that's no less the case with the First Amendment. And the fact that these were big, expansive provisions that didn't have a lot of fleshed-out content has been a source of endless debate down through the centuries. And so you're absolutely right that there are questions about the applicability of this in a divided culture. But here's what makes me optimistic about this. One of the things I have noticed as I've been in DC working in the legislative branch, uh, executive branch, in the judicial branch before that, is that in many ways, the way to think about the factions of political power in this country is it is not a dyadic system with left and right as a triadic system, where it's the left, the right, and the business sector. And all three of those have different interests and goals and priorities and interact in different and competing ways. But because all these groups are in a triadic structure instead of a dyadic, strictly oppositional structure, there are many cases where left and right can come together to say that a particular business practice crossed the line. And so many, many First Amendment cases are 9-0 at the Supreme Court, 3-0 at the appellate courts, not controversial in lower courts below. Lots of religious liberty cases are victories from the Democratic with the Democratic Pointed judges, lots of free speech cases the same way. There is a lot of consensus that can, in fact, be found on these things. The empirical data bears that out. So obviously the 5-4 cases are the big ones, are the ones everybody watches, and that define the image of the Supreme Court for people when they think about what the Roberts Court is doing or what the Warren Court did before that. But so much of the Supreme Court's docket is fairly straightforward cases where there's a huge amount of consensus. And so even if there is a lot of division and kind of the breakdown of that religious framework, which I would, I would agree is a problem, as, as, as Brad pointed out, I think the nature of how politics has developed in this environment is such that common ground can in fact be found on this. And I was excited to see that there was a conversation recently at AEI with uh Professor Joel Aliseya at Catholic and Lawrence Lessig at Harvard raising some of the very questions that we raised in this piece about First Amendment originalism and what that looks like going forward and if wrong turns might have been taken along the way. So there you have a bipartisan discussion being had at a very, you know, neoliberal think tank about this exact kind of set of issues. And so I think looking forward, what we need to assess is whether or not the tradition that we say is our First Amendment tradition is an invented tradition and what a more authentic First Amendment originalism and a more democratically accountable understanding of corporate power look like.

SPEAKER_03 58:48

You get a gold star. Now you'll get invited back, maybe Brad too. Uh but my guests have been John Eric, attorney and writer in Washington, D.C., previously chief counsel to Senator Josh Hawley. I want to plug another piece you wrote that is relevant to this conversation, say, the myth of citizens united that you wrote. So maybe check that one out. It's an anchoring truths. Other guest was Brad Littlejohn, Director of Programs and Education at American Compass. I forgot to mention you have a PhD in historical theology from Edinburgh. Very fancy. You have written uh uh other pieces that are really interesting on this, like the First Amendment as Suicide Pact. Was that in Commonplace?

SPEAKER_01 59:22

No, that was that was just my substack about this article. Okay, yes, yes, yes.

SPEAKER_03 59:25

Okay. Well, uh I should have done better research. Um you also wrote a book. Did you write a book?

SPEAKER_01 59:30

I have written a book called Called to Freedom. Covers a lot of this stuff from a more theological idea. Check that out.

SPEAKER_03 59:35

I had to ask you because I was like, is this all inaccurate?

SPEAKER_01 59:36

Uh, a substack post or a piece I did in Commonplace, I think, was called Oh, it was about the Paxton decision.

SPEAKER_03 59:43

I'll link to that in the show notes. And then we've got, you know, check out AmericanCompass.org for more of their work. Gents, thank you so much for joining. Thanks for having us. So the article is called the Post Human First Amendment. It was brilliant and fascinating, which is why I invited them to come on the show. It's in National Affairs. Center Edge is sponsored by Digital Progress Institute, a bipartisan technology policy think tank based in Washington, DC. This podcast is produced by Vulgate Media. You can find it and subscribe in Spotify, Apple Podcasts, or wherever you get your podcasts. Please leave us a review. It will help others find the show. You can email me at Evanet CorePointstrategies.com with any feedback or ideas for shows. Otherwise, we'll catch you next time.