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."
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.
Old engraved illustration of Ulysses defying the Cyclops.
Odysseus Reimagined: Nolan’s Epic Explores What Makes a True Hero
Who is a hero? More importantly: what is a hero? What attributes are universally admired, inspiring glorious stories, ballads and songs, memorials and movies, all chronicling the hero’s bold adventures?
The Odyssey, a new release written and directed by Christopher Nolan, attempts to answer that question. Based on the ancient tales The Iliad and The Odyssey, written by Homer around 800 BC, the film stars Matt Damon as Odysseus and Anne Hathaway as Penelope, his loyal wife.
Historians have puzzled over the “Homeric question,” that is, who was Homer? We know very little about him, not even when or where he was born; seven Greek cities lay claim to him as their native son. Yet, he is considered the “godfather” of national Greek culture, and his stories are among the earliest masterpieces of literature.
Homer is sometimes romanticized as a blind poet who wandered from town to town reciting his stories. But he, who could express so poignantly the tribulations of Odysseus, was not blind to human nature. He keenly wrote of the attributes as well as the paltriness in his characters and the flaws of his great hero, Odysseus.
The Iliad is the story of the final years of the Trojan War, sparked when Helen, the beautiful wife of Sparta’s King Menelaus, was kidnapped by Paris of Troy. Because the kings had initiated a pact to defend one another, Odysseus was drawn into the fray.
After spending ten years fighting the Trojan War and finally achieving victory, The Odyssey tells of Odysseus’s struggle to return to his kingdom, Ithaca. On his way home, he encounters many dangers and delays. He is pursued by the sea-god Poseidon, must surmount Circe’s spell, and overcome the seductive charms of the enchantress Calypso, and his journey takes him another ten years.
Odysseus’s desires and struggles are universal: his longing for home, yearning for an end to his troubles, for rest after a long and difficult journey. His difficulties reflect the immemorial questions of what it means to be loyal, to belong, what it means “to be” at all. Despite his hubris, which manifests in his propensity to court catastrophe without regard for consequences, Odysseus is an authentic hero, noble and admirable, brave and dedicated.
According to the Greek ideal, a true hero must possess physical excellence and moral virtue. He must, as well, embrace his civic duty. Achieving such status requires “paideia,” a good education; “sophrosyne,” moderation in maintaining physical and emotional balance; and “arete,” an allegiance to the state.
Fictional or real, heroes’ deeds resonate through the centuries and shine a light on what is best in humanity, what matters, what will live on despite our mortality.
Is our digital age really so different from Homer’s Bronze Age? Physical beauty is still adulated, as it was then with Helen of Troy, “the face that launched a thousand ships.” (Marlowe) Power is still king, and wealth is still power.
The years of the Trojan War were harsh and violent. But were they more brutal than the times we live in? Although millenniums have passed and we now have different battlefields, Palestine, Ukraine, Iran, etc., the ravages and the wages of war remain the same: death and suffering. Humanity’s currency is the same, and so, too, is our quest for heroes.
Social scientists claim that after three generations most people are forgotten by even their direct progeny, and after four, remembered only by historical records. So, what then does last? What makes a difference? What is truly beautiful and worthwhile in life?
The universal themes embodied and emboldened by our heroes throughout the ages, the faithfulness of their hearts and the courage of their deeds, these last.
The essential qualities of a hero are manifested in Homer’s Odysseus. Steadfast integrity: “Hateful to me as the gates of Hades is that man who hides one thing in his heart and speaks another.” His deep compassion: “Yet, taught by time, my heart has learned to glow for others’ good, and to melt at others’ woes.” (Both quotes from The Odyssey.)
Nolan’s movie may have created a more virtuous hero than Homer’s works, but the core of the nearly 3,000-year-old-story is intact and as crucially relevant today as it was then. It is the stuff of life: trauma, survival, relationships with others, finding oneself, deciding what is right, choosing a path forward, sometimes, ultimately leading to the honing of a hero.
Just as Odysseus braved storms, temptations, and trials in search of home, we too face a modern sea of civic turbulence, polarization, mistrust, and the fraying of our shared story.
As we live, we too will write our defining stories. How then might we become modern heroes?
By instigating the third Greek ideal of “arete”; embracing our civic duty. By becoming citizens who are open to reflection and debate, who are willing to act with purpose for the betterment of our nation.
In this journey, the work of renewing our democracy can be its own Odyssey, a voyage calling for integrity, courage, and steadfast commitment. Not to return home as Odysseus so desired, but to preserve our home, for the grand and worthwhile purpose of working toward an ever-better future for our country.
With others, we can shape the next chapter of our nation’s collective story.
Amy Lockard is an Iowa resident who regularly contributes to regional newspapers and periodicals. She is working on the second of a four-book fictional series based on Jane Austen’s “Pride and Prejudice."