The Disintegration of Free Speech

Abstract

This Article examines the constitutional status of AI-mediated communication under the First Amendment. Social media platforms, increasingly integrated with generative AI systems, now function as core public communication infrastructures. Within this environment, AI-generated pornography and large-scale political misinformation have produced significant dignitary and democratic harms. In response, states have enacted regulations requiring platforms to remove certain content, disclose recommendation practices, or redesign moderation systems. These measures, however, collide with prevailing First Amendment doctrine. The Article argues that under existing jurisprudence, AI-generated content is protected speech, and regulations targeting platform moderation practices are likely unconstitutional. Since the 1970s, the Supreme Court has shifted from a structural concern with the free circulation of information toward a strong protection of editorial autonomy, understood as control over authorship, expressive identity, and freedom from compelled attribution. Once content moderation is characterized as editorial judgment, regulatory mandates that compel or restrict such practices presumptively violate the Free Speech Clause. The Article concludes that this doctrinal trajectory risks severing the First Amendment from its democratic foundations and calls for a reconstruction attentive to automated content production, platform infrastructure, and concentrated communicative power.