Skip to content
Search

Latest Stories

Top Stories

AI and a marketplace of illusion and confusion

AI and a marketplace of illusion and confusion
Getty Images

Kevin Frazier is an Assistant Professor at the Crump College of Law at St. Thomas University. He previously clerked for the Montana Supreme Court.

The First Amendment protects a marketplace of ideas—ideally, speakers can freely offer information and the public audience can evaluate that information in light of other ideas, arguments, and proposals. This exchange has a clear goal: the maintenance of a deliberative democracy.


Content generated by AI will soon cause a catastrophic market failure, unless we act now to protect our ability to converse with and learn from one another. Two facts make that impending failure clear: first, in just three years, 90 percent of online content may be generated by AI; and, second, humans struggle--and will increasingly struggle as AI improves--to identify AI-generated speech.

The upshot is that our marketplace of ideas will soon be a marketplace of illusion and confusion. It’s time to establish a “Right to Reality.” Our main marketplaces– from Facebook to The New York Times--should have a legal obligation to label the extent to which content is altered by AI or “organic”--i.e., created by humans.

Though this Right to Reality may seem far fetched, it’s grounded in the core principles of the First Amendment. By way of example, the U.S. Supreme Court has held that there’s a right to receive information. Justice Brennan, writing for the plurality in Board of Education v. Pico, argued that "[t]he right of freedom of speech and press embraces the right to distribute literature, and necessarily protects the right to receive it. The dissemination of ideas can accomplish nothing if otherwise willing addresses are not free to receive and consider them."

Sign up for The Fulcrum newsletter

In an information ecosystem polluted by altered content “willing addresses” lack that freedom. For one, it’s nearly impossible to “receive” organic information if it requires sorting through mountains of AI-generated mis- and disinformation. Second, even if one stumbled across organic information in that setting, they may not know it because of the increasing capacity of AI tools to mirror organic content.

Astute readers may contest the Right to Reality on the basis that the First Amendment under the Federal Constitution only protects against government interference. That argument has some weight--though, as an aside, the U.S. Supreme Court has recognized First Amendment rights in some settings involving private actors. Nonetheless, to the extent the federal First Amendment is bounded, there’s another legal home for the Right to Reality--state constitutions.

Many state constitutions have distinct freedom of speech provisions that have been interpreted to afford greater protections. Case in point, the New Jersey Supreme Court held that freedom of speech and assembly provisions under the state's constitution protected students distributing political leaflets at Princeton, a private university. The court explained that a limited private right of action may exist based on the typical use of the space, whether the public had been invited to use that space, and the purpose of the expressive activity in question. Courts in California, Pennsylvania, and beyond have reached similar conclusions.

There’s little denying that our modern public spheres, including social media platforms, fit the profile of a space that ought to be subject to regulation under such state constitutional speech provisions. Social media platforms are commonly and increasingly used to exchange political views and news, are designed to facilitate such exchange, and are generally open to the public.

The legal viability of the Right to Reality is also bolstered by its minimal impact on expressive activity. Unlike other provisions that have run afoul of freedom of speech protections, the Right to Reality would not remove any content from public forums but merely assist in the evaluation of that content. It’s also worth pointing out that the ability to evaluate the accuracy and origin of information serves several societal goals.

Our democracy cannot function if voters cannot confirm whether a candidate or a computer generated a message. Our children will struggle to mature into well-rounded citizens if they solely interact with altered content. Our collective capacity to challenge the status quo will collapse if we outsource our critical thinking to AI tools.

In short, it’s now or never for a right to reality.

Read More

Bridging Hearts in a Divided America

In preparation for U.S. President-elect Donald Trump's second inauguration in Washington, D.C., security measures have been significantly heightened around the U.S. Capitol and its surroundings on January 18, 2025.

(Photo by Celal Gunes/Anadolu via Getty Images)

Bridging Hearts in a Divided America

This story is part of the We the Peopleseries, elevating the voices and visibility of the persons most affected by the decisions of elected officials. In this installment, we share the hopes and concerns of people as Donald Trump returns to the White House.

An Arctic blast is gripping the nation’s capital this Inauguration Day, which coincides with Martin Luther King Jr. Day. A rare occurrence since this federal holiday was instituted in 1983. Temperatures are in the single digits, and Donald J. Trump is taking the oath of office inside the Capitol Rotunda instead of being on the steps of the Capitol, making him less visible to his fans who traveled to Washington D.C. for this momentous occasion. What an emblematic scenario for such a unique political moment in history.

Keep ReadingShow less
King's Birmingham Jail Letter in Our Digital Times

Civil Rights Ldr. Rev. Martin Luther King Jr. speaking into mike after being released fr. prison for leading boycott.

(Photo by Donald Uhrbrock/Getty Images)

King's Birmingham Jail Letter in Our Digital Times

Sixty-two years after Rev. Dr. Martin Luther King’s pen touches paper in a Birmingham jail cell, I contemplate the walls that still divide us. Walls constructed in concrete to enclose Alabama jails, but in Silicon Valley, designed code, algorithms, and newsfeeds. King's legacy and prophetic words from that jail cell pierce our digital age with renewed urgency.

The words of that infamous letter burned with holy discontent – not just anger at injustice, but a more profound spiritual yearning for a beloved community. Witnessing our social fabric fray in digital spaces, I, too, feel that same holy discontent in my spirit. King wrote to white clergymen who called his methods "unwise and untimely." When I scroll through my social media feeds, I see modern versions of King's "white moderate" – those who prefer the absence of tension to the presence of truth. These are the people who click "like" on posts about racial harmony while scrolling past videos of police brutality. They share MLK quotes about dreams while sleeping through our contemporary nightmares.

Keep ReadingShow less
The arc of the moral universe doesn’t bend itself

"Stone of Hope" statue, Martin Luther King Jr. Memorial, Sunday, January 19, 2014.

(Photo by Nikki Kahn/The Washington Post via Getty Images)

The arc of the moral universe doesn’t bend itself

“The arc of the moral universe is long, but it bends toward justice.” The Rev. Martin Luther King Jr.’s familiar words, inscribed on his monument in Washington, D.C., now raise the question: Is that true?

A moral universe must, by its very definition, span both space and time. Yet where is the justice for the thousands upon thousands of innocent lives lost over the past year — whether from violence between Ukraine and Russia, or toward Israelis or Palestinians, or in West Darfur? Where is the justice for the hundreds of thousands of “disappeared” in Mexico, Syria, Sri Lanka, and other parts of the world? Where is the justice for the billions of people today increasingly bearing the brunt of climate change, suffering from the longstanding polluting practices of other communities or other countries? Is the “arc” bending the wrong way?

Keep ReadingShow less
A Republic, if we can keep it

American Religious and Civil Rights leader Dr Martin Luther King Jr (1929 - 1968) addresses the crowd on the steps of the Lincoln Memorial during the March on Washington, Washington DC, August 28, 1963.

(Photo by PhotoQuest/Getty Images)

A Republic, if we can keep it

Part XXXIV: An Open Letter to President Trump from the American People

Dear President Trump,

Keep ReadingShow less