Eugene Volokh's Blog, page 95

[Eugene Volokh] "Listen, the Media Deserves Some Blame, Too": "You Guys Should Not Have Believed Us So Easily"

From Mediaite (Zachary Leeman) yesterday:

"Original Sin" co-author Alex Thompson revealed a Democratic insider told him they were "amazed" at how "easily" the media swallowed "spin" about former President Joe Biden's health….

It goes on to quote Thompson:

The media fell short, and the biggest example of that is, if the media was on top of this, then Biden's debate performance should not have been such a shock to so many people ….

I had one conversation with someone, this was after the election, while we were reporting this book, and this person said, "Listen, yes, we deserve blame for X, Y, Z. We were hiding him. We were." But this person also sort of got in my face, and they said, "Listen, the media deserves some blame, too." Like we were sort of amazed at some of the stuff we were able to spin and get on….

They're just like, "You guys should not have believed us so easily." And I thought that was like a really interesting, but I also think that's true. I think the media, and in a lot of ways, was not skeptical enough and did not remember the less[on] that, they do it to different degrees, but every White House lies.

This reminds me of the essay I prepared for the Free Speech in Crisis & the Limits of the First Amendment in March; I was invited to participate on the Media Environment panel, for which the description was:

It is widely believed that a profoundly broken media system is responsible for bringing the current administration into power, and for critics, the political crisis it has unleashed. Is this correct? And if so, what is to be done about it? How can public opinion be harnessed to serve constitutional purposes in the new media landscape? How can and should the media system be reformed? And what can free speech law do about any of this?

We were all asked to write up to about 2000 words on our topics, and I include below the current draft of my submission (a version of which I blogged March 31). I hope to revise it, if there's time before the essays are published at Balkinization, to include part of Thompson's quotes, and to cite Original Sin.

[* * *]

The 2024 presidential campaign saw a massive disinformation and misinformation campaign, which likely helped bring the current administration into power. Leading media organizations failed to stop it in time. Indeed, some of them were complicit, through inadequate investigation and perhaps even willful blindness, in the misinformation. We thus face an urgent question, raised by the workshop organizers: "How can and should the media system be reformed?"

I'm speaking, of course, of the campaign to conceal President Biden's mental decline—a campaign that was only conclusively exposed by the June 27, 2024 debate. At that point, little time was left for deciding whether the President should be persuaded to step aside; for the actual persuasion; for the selection of a replacement; and for the replacement's attempt to persuade the people to elect her.

Had the Administration leveled with the public earlier, or had the media exposed the concealment earlier, there would likely have been time for a full primary campaign, in which Democratic voters could have made their choice about whom to run against Donald Trump. Perhaps that candidate would have been more effective than Kamala Harris. Or perhaps the candidate would have still been Harris, but a Harris who was seen as having more legitimacy with the public. "Democracy Dies in Darkness," the Washington Post tells us. It appears that the Democratic Party's prospects died in this particular darkness.

The single most consequential fact of the 2024 Presidential campaign had thus been largely hidden for a long time, including from (and, perhaps unwittingly, by) the media organizations whose job it is to inform us. Indeed, this a fact not just of immense political significance, but also central to national security: If President Biden was indeed cognitively impaired, that bore on his ability to make decisions as President, not just his ability to be re-elected.

When, for instance, Trump and Vance spread unfounded rumors of Haitian immigrants eating cats and dogs, the media rightly blew the whistle. But when some media outlets tried to point out the evidence of Biden's likely incapacity, others didn't pick up on the investigation—and, indeed, sometimes pooh-poohed the investigation.

As late as mid-June 2024, the White House and many of its supporters characterized videos of Biden apparently freezing up and seeming confused as "cheap fake" disinformation created by his enemies. Indeed, as Nate Silver has noted, "some coverage endorsed the White House party line, particularly in its tendency to characterize claims about Biden's acuity as 'misinformation.'" Only Biden's televised debate performance on June 27, 2024 made it impossible to deny there was something badly wrong. It seems likely that many of the supposed "cheap fakes" actually accurately captured Biden's cognitive slippage, especially since the slippage apparently went back a good deal before the debate.

And even if some particular videos had indeed been disinformation from his enemies, the fact remains that the media failed to adequately identify the disinformation from his friends. Indeed, isn't it shocking that so many White House reporters appear to have learned thanks only to the nationally televised debate and not to their investigative journalism?

Of course, reaching the truth on this question wasn't easy. Biden insiders apparently tried hard to conceal the facts (that's the disinformation part). And indeed it's not surprising that people who are both personally loyal to a President and rely on the President's success for their ongoing careers would want to conceal such facts. In our fallen world, we can't expect much candor from political insiders. And I expect most journalists sincerely believed the reassurances they were getting from the insiders.

But getting sincerely duped isn't a great professional mark for a journalist. Their job was to dig and find out—before things became evident, not after (and indeed some indications of Biden's decline were indeed evident for some time before the debate). Indeed, to the extent that the media's credibility has declined over recent years, such failures of investigation seem likely to only exacerbate this decline.

Undoubtedly, the White House wanted to keep this fact [of Biden's decline] under wraps until Biden was safely over the finish line in November. But media organizations that participated, even unwittingly, in this farce have not only made a subsequent Democratic administration far less likely—they have profoundly undermined their own integrity.

* * *

How could this happen? I hope we will learn more about this in the years to come. A CNN headline the day I wrote this discussed a forthcoming book by Jake Tapper and Alex Thompson called "Original Sin: President Biden's Decline, Its Cover-Up, and His Disastrous Choice to Run Again."

But at this point, at least a first cut—informed by our shared knowledge of human nature—is that many in the media likely didn't dig hard because they didn't really wanted to uncover things. It isn't controversial, I think, that most in the mainstream media much preferred President Biden over his challenger, Donald Trump. Indeed, I agree they had good reason to dislike Trump. Certainly Trump himself had done much to stoke that hostility.

"Biden is cognitively impaired" was a standard talking point on the Right. So long as Biden was the nominee, that fact, if demonstrated, would help Trump. (As I've argued, if the fact helped Democrats replace Biden with a better candidate, it might have hurt Trump, but that would have been a less direct chain of causation.) It's human nature to accept stories that fit one's political preferences than to challenge them. A thought experiment: If the sitting President in 2024 had been a Republican—whether Trump or, say, an older Ron DeSantis—would the media have acted the same way they did? Or would they have worked harder, dug deeper, and uncovered the truth earlier?

Yet of course institutions should be designed to counteract the flaws generated by human nature while working within the constraints created by human nature. (That knowledge was old when Madison was young.) This is true of media institutions as well as governmental ones. There need to be mechanisms to keep reporters' and editors' inevitable ideological predilections from turning into ideological blinders and ideological blunders.

Of course, it's much easier to identify the problem than a suitable solution. One can imagine, for instance, newspapers deliberately seeking out reporters and editors with many different ideological beliefs, hoping that colleagues will fill each others' blind spots (or, in collegial conversations, help each other identify their blind spots). But this may be hard to implement; and, as with preferences based on race and sex, preferences based on politics may be challenged as leading to hiring based on ideology rather than merit. (They may also be defended, as with preferences based on race and sex, as a tool for fighting subconscious bias that keeps meritorious candidates from being fairly considered.) Indeed, hiring that considers applicants' ideological beliefs may violate some states' laws that limit employment discrimination based on political ideology or party affiliation, just as hiring that considers applicants' religious beliefs may violate bans on employment discrimination based on religion.

Newspapers might also return to prohibiting reporters and editors from publicly opining on controversial issues. Of course, realistic readers will recognize that reporters may still be biased. But taking a public stand on an issue may increase such bias: If one has publicly endorsed position X, it might become harder to write fairly about evidence that instead tends to support the rival position Y. Few of us like writing something that suggests that we were mistaken in the past, or that our critics can interpret as making such a suggestion.

Again, though, in some jurisdictions such public neutrality rules for newspaper employees may violate state employment statutes. One state court held (by a 5–4 vote) that those statutes themselves violate the First Amendment when applied to newspaper reporters or editors. But in AP v. NLRB (1937), the U.S. Supreme Court held (also 5–4) that federal labor law, which bans discrimination based on union membership, didn't violate the Associated Press's rights to select reporters or editors.

Likewise, one can imagine newspapers and magazines deliberately courting a broad ideological mix of readers—not just for the extra revenue, but also to commit themselves to having a base that they will need to be seen as treating fairly. A publication that has many readers on the left, right, and center might feel more pressure to be fair and careful to all sides. Of course, it may be hard these days to acquire such a broad reader base. And there's always the danger that concern about reader reactions may press a newspaper to avoid controversial topics altogether, rather than to try handling them fairly.

Finally, newspapers can just try to recommit themselves to objectivity, fuzzy as the term may sometimes be. (Many commentators have expressly taken the opposite view.) In their news coverage, they may recommit to discussing the best arguments on both sides of contested issues. In choosing what to cover, they may try hard to see what both sides of the aisle view as especially important. On their editorial pages, they may avoid a party line, either instituted top down or by staff revolts. Instead, they may adopt the policy that whatever ideas are shared by at least substantial minorities of the public should be seriously covered, even when editors think that one side is obviously wrong.

Again, though, that's easier said than done (and it's not even that easily said). It will inevitably require hard choices that will leave many observers skeptical about the media organization's fairness —e.g., which sides of a multi-sided issue should be covered, which topics are important enough to cover, which positions are such outliers that they can be set aside, how to allocate scarce space and attention. And it may not do much to solve the problem we began with, which is the ability of media organizations to be massively duped by the side they sympathize with.

Thus, these solutions are likely to be far from perfect. The cures may even be worse than disease.

But there is indeed a disease, "a profoundly broken media system" (to quote the workshop organizers). This system is one that the public has good reason to distrust. Its flaws undermine the media's ability to check government malfeasance. It may have been so captured by the desire to #Resist one movement that it failed to resist the disinformation spread by another. And it may thus have ended up helping the very candidate and movement that it had (understandably) viewed as dangerous.

 

See, e.g., Chris Whipple, Uncharted: How Trump Beat Biden, Harris, and the Odds in the Wildest Campaign in History 201 (2025) (quoting Leon Panetta, White House Chief of Staff under Clinton and Secretary of Defense under Obama, as making this point); Jonathan Allen & Amie Parnes, Fight: Inside the Wildest Battle for the White House 86 (2025) (quoting "a Biden ally" as making the same point); id. at 90 (inferring that long-time Democratic Speaker of the House Nancy Pelosi held a similar view); Josh Barro, This Is All Biden's Fault, N.Y. Times, Nov. 11, 2024; Four Writers on What Democrats Should Do, N.Y. Times, June 30, 2024.

See, e.g., Hanna Panreck, Karine Jean-Pierre Doubles Down on 'Cheap Fake' Biden Videos: 'So Much Misinformation', Fox News, June 19, 2024.

Nate Silver, Did the Media Blow It on Biden?, Silver Bulletin, May 15, 2025, https://www.natesilver.net/p/did-the-....

See, e.g., Annie Linskey & Siobhan Hughes, Behind Closed Doors, Biden Shows Signs of Slipping, Wall St. J., June 4, 2024; Michael Williams, George Clooney Says Democrats Need a New Nominee Just Weeks After He Headlined a Major Fundraiser for Biden, CNN, July 10, 2024; David Gilmour, CNN's Jake Tapper Argues Biden White House Misled Public 'All the Time' With 'Cheap Fake' Spin, Mediaite, May 14, 2025, https://www.mediaite.com/tv/i-look-ba....

See, e.g., Colby Hall, I Look Back on It With Humility': Jake Tapper Says He Covered Biden's Cognitive Issues, But Admits 'Not Enough', Mediaite, May 14, 2025, https://www.mediaite.com/tv/i-look-ba....

See Silver, supra note 3 (describing many such indications, and noting, "when something is an open secret to the extent Biden's condition was among elites—to the point that many people close to him felt it jeopardized national security—you'd hope for the press to report on it more aggressively"); see also Paul Mirengoff, Joe Biden's Steep Decline: A Tale of Two Coverups, Ringside at the Reckoning, May 16, 2025, https://ringsideatthereckoning.substa....

Robby Soave, Why Didn't the Media Notice Joe Biden's 'Jet Lag' Sooner?, Reason, July 3, 2024.

See also Whipple, supra note 1 (similarly discussing, among other things, Biden insiders' attempt to conceal Biden's cognitive impairment); Allen & Parnes, supra note 1 (making the same point).

See Mirengoff, supra note 6.

Cf. The American Journalist, Key Findings from the 2022 American Journalist Study (reporting that 51.7% of journalists identified as Independent, 36.4% Democrat, 8.5% Other, and 3.4% Republican). I appreciate that this is an online survey, and one that doesn't specifically ask about views on Trump; but it reinforces what is generally seen as conventional wisdom, and I've seen no data pointing in the opposite direction.

See Eugene Volokh, Should the Law Limit Private-Employer-Imposed Speech Restrictions?, 2 J. Free Speech L. 269 (2022); Eugene Volokh, Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. of L. & Pol. 295 (2012).

See Nelson v. McClatchy Newspapers, 131 Wash. 2d 523 (1997).

See, e.g., Leonard Downie Jr., Newsrooms That Move Beyond 'Objectivity' Can Build Trust, Wash. Post, Jan. 30, 2023.

See, e.g., Washington Post Owner Jeff Bezos Says Opinion Pages Will Defend Free Market And 'Personal Liberties', PBS News, Feb. 26, 2025.

See, e.g., Marc Tracy, James Bennet Resigns as New York Times Opinion Editor, N.Y. Times, June 7, 2020.

The post "Listen, the Media Deserves Some Blame, Too": "You Guys Should Not Have Believed Us So Easily" appeared first on Reason.com.

[Eugene Volokh] "AI, Free Speech, and Duty"

Just two weeks ago, my Free Speech Unmuted co-host Prof. Jane Bambauer (Florida) and I discussed Garcia v. Character Technologies. (Besides being a leading First Amendment scholar, Jane also teaches and writes about tort law.) I'm therefore especially delighted to pass along some thoughts from her on yesterday's decision in the case:

AI, Free Speech, and Duty [by Jane Bambauer]

The case against Character.AI, based on the suicide of a teenager who had become obsessed with his Daenerys Targaryen chatbot, produced an important opinion yesterday. Judge Conway of the U.S. District Court in Orlando declined to dismiss almost all of the plaintiffs' claims, and also refused "at this stage in the litigation" to treat AI or chatbot output as speech under the First Amendment. I think the opinion has problems.

Eugene has already laid out some of the reasons that the court's First Amendment analysis is flawed. (E.g., could the Florida legislature really pass a law banning ChatGPT from producing content critical of Governor DeSantis? Of course not.) I want to pile on a little bit—I can't help myself—and then connect the free speech issues to the analysis of tort duty.

Is Chatbot Output "Speech"?

The defendants (Google and Character AI) argued that chatbot output is protected speech, much like computer-generated characters in video games. The defendants made analogies to other expressive technologies that were once new as well. But the court found that these arguments "do not meaningfully advance their analogies" because the defendants didn't explain how chatbot output is expressive.

In the court's opinion, with an assist from Justice Barrett, chatbot output is not expressive because it is designed to give listeners the expression that they are looking for rather than choosing for them:

The Court thus must decide whether Character A.I.'s output is expressive such that it is speech. For this inquiry, Justice Barrett's concurrence in Moody on the intersection of A.I. and speech is instructive. See Moody, 603 U.S. at 745–48 (Barrett, J., concurring). In Moody, Justice Barrett hypothesized the effect using A.I. to moderate content on social media sites might have on the majority's holding that content moderation is speech. Id. at 745–46. She explained that where a platform creates an algorithm to remove posts supporting a particular position from its social media site, "the algorithm [] simply implement[s] [the entity's] inherently expressive choice 'to exclude a message.'" Id. at 746 (quoting Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Boston, Inc., 515 U.S. 557, 574 (1995)). The same might not be true of A.I. though—especially where the A.I. relies on an LLM:

But what if a platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will like …? The First Amendment implications … might be different for that kind of algorithm.

This reasoning was ill-conceived when Justice Barrett first wrote it. When the Disney company greenlights a superhero movie, it's plausible that a decision to make a movie about people flying around and looking cool is mostly or even entirely motivated by giving paying movie-goers whatever they want, and that they would choose the backstory, dialog, wardrobe, and everything else to maximize profits if they could. But this wouldn't change the fact that the movie is speech.

Justice Barrett's reasoning is even more untenable in a case against chatbots. Is there really any doubt about the nature of written correspondence responding to a person's prompts and questions? It's difficult to conceive of a more expressive product than words designed to address the questions and interests that a listener has actively cultivated and asked for.

Lest there be any doubt, Judge Conway's own opinion, just a couple sections later, can't help but use the word "expression" to describe chatbot output. When discussing the products liability claim, Judge Conway decided that the case may proceed to the extent the product claim is based on the app's failure to confirm users' ages or to give users greater control over excluding indecent content, and not on the actual content of the conversations. "Accordingly, Character A.I. is a product for the purposes of Plaintiff's product liability claims so far as Plaintiff's claims arise from defects in the Character A.I. app rather than ideas or expressions within the app" (emphasis added). This analysis seems correct to me, and by restricting the products claims the court has sidestepped the First Amendment defenses that media defendants typically bring to design defect cases. My point here is just to show that the court couldn't even get through its own opinion without referring to chatbot output as expression.

Free speech first principles also strongly suggest that AI-generated content is protected. In my opinion, the most basic and sensible core value for free speech is what Seanna Shiffrin called the thinker-based approach to the First Amendment, focusing on the audience as thinkers. This asks whether a law interferes with the "free development and operation of a person's mind."  More than any other theory of free speech, even the democratic self-governance theory, this one gets at the heart of what most Americans love and expect from the First Amendment: that the government will not interfere with the voluntary development of inner thoughts. A diary should receive First Amendment protection even though it doesn't match the usual human-speaker-to-human-listener paradigm. So, too, should a person alone with their chatbot have the freedom to explore the expressive output of AI.

So I think the court flubbed an opportunity to get the free speech question right. Still, the First Amendment does not automatically require the dismissal of the plaintiff's claims, since it still remains possible that there might be an exception to the First Amendment for certain kinds of negligent speech that causes physical harm. I am particularly interested in the deep questions related to general principles of duty.

Does General Purpose Service Create a General Duty of Care?

Character.AI argued that it did not owe a duty of care to its users. The court disagreed. The opinion explained:

"a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others." McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992).

Florida's rule for duty is similar to most other states, and basically boils down to a "conduct plus foreseeability" test. If you take an act that introduces a new force into the world, and that force foreseeably creates risks to others, then you have a duty to conduct your affairs in a manner that is reasonable. (Contrast this with just standing there while others call out for help. Assuming that nothing you did caused the person to need assistance in the first place, you can stand there with impunity, under common law tort principles, because you owe no duty.)

Judge Conway easily finds that Character.AI owed a duty in this case:

Defendants, by releasing Character A.I. to the public, created a foreseeable risk of harm for which Defendants were in a position to control. Accordingly, Plaintiff sufficiently alleges Defendants owed a duty "either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses." McCain, 593 So. 2d at 503 (quoting Kaisner v. Kolb, 543 So. 2d 732, 735 (Fla. 1989)).

Yet in truth, the conduct + foreseeability test is not quite right. There are many activities where courts don't impose a legal duty even though, viewed at a particular point in time or with enough abstraction, the acts of the defendant clearly would foreseeably increase a risk of some type of hazard.

There is no better illustration of this, in fact, than duty rules in suicide inducement cases. Long before this case, courts struggled to select a duty rule that takes account of the fact that suicidal people typically exercise their own agency. Courts do allow negligence claims to proceed, even in the absence of a special relationship, but plaintiffs often have to show more than simple conduct + foreseeability. Otherwise, almost any action taken with or near a depressed person could trigger a legal responsibility for their care. Thus, courts struggle with the best duty rule. The Restatement (Second) of Torts rule related to suicide recognizes liability for negligent conduct if it (1) "brings about delirium or insanity in another" and (2) while that condition of delirium or insanity continues to exist, it "makes it impossible for him" or her to resist the suicidal impulse by depriving that person of the capacity to reasonably control his or her conduct and not carry out the suicidal impulse. (Restatement (Second) Torts § 455.) Some states have chosen rules that provide more avenues to recovery than the Restatement (Second) rule, and others have foreclosed negligence cases based on suicide entirely.

In other words, even putting aside the speech aspect of this case, a court should struggle with the facts of this case, and the rule for duty should be more searching and careful. Duty is the element that often takes a peek at the other elements that a plaintiff will have to prove (breach, causation, damages) and imagines the impact of repeated cases. Where good policy would require limiting duty, the "conduct plus foreseeability" rule should be modified.

Can Risky Speech Create a Duty of Care?

The court's First Amendment analysis does have some impact on the duty analysis, too. If the court had recognized chatbot output as speech, then it would have to recognize the parallel between this case and the wide range of cases brought against other media defendants. There have been multiple unsuccessful claims that popular movies and music glamorizing violence or self-harm have foreseeably caused some members of their audience to commit suicide. Ozzy Osbourne's song "suicide solution" alone attracted multiple lawsuits (see, e.g., McCollum v. CBS, Inc.(Cal. App. 1988)). And indeed, compared to the rather ambiguous messages produced by Character.AI—messages like "Please come home to me as soon as possible, my love"—Osbourne's song was pretty overt in its message:

Why try, why try
Get the gun and try it
Shoot, shoot, shoot

But in art, even overt messages are rarely straightforward. Doesn't Romeo and Juliet glamorize suicide? Given the chilling effect of liability on speech, foreseeability alone cannot suffice to force authors and media companies to defend themselves, and to show that they took "reasonable precautions" to reduce the risk that some portion of their audience will be inspired to do something harmful.

But that isn't the whole story. There have been cases where a defendant has unreasonably increased the risk of suicide through speech alone. These involve cases of one-on-one communications between the defendant and the decedent, such as the criminal conviction of Michelle Carter who urged her friend to get back into his fume-filled truck and complete his suicide attempt. And media defendants are not completely immune, either. In one case, a tort claim was allowed to go forward against a news company when it broadcast a telephone call between its reporter and the suicidal person while the crisis and police standoff was still taking place.

The difference between the two types of cases is the nature of the communication: In a one-to-many form of expression, the foreseeability of a sort of stochastic risk of harm will not suffice to overcome free speech protections. But in one-to-one communications, foreseeability is much more particular.

So which type of defendant is Character.AI? Is it the one-to-one defendant that is directly and specifically interacting with the decedent (analogous because of the highly customized nature of the output)? Or is it the one-to-many media defendant that is putting its content out more generally (analogous because the human decision-making at Character.AI stopped well before the particular messages at issue in the case)?

A case that Judge Conway cites in her opinion (but much earlier, and for another proposition) suggests one-to-many.  In Twitter v. Taamneh, the Supreme Court applied standard principles of tort law to find that Twitter, Google and other social media firms do not owe a duty of care to all potential victims of terrorism even though they knew, at the time of offering service, that several terrorist organizations were using their platforms to recruit new members. The reasoning in Taamneh is very applicable to this case as well, so I will quote it at length:

[T]he only affirmative "conduct" defendants allegedly undertook was creating their platforms and setting up their algorithms to display content relevant to user inputs and user history. Plaintiffs never allege that, after defendants established their platforms, they gave ISIS any special treatment or words of encouragement. Nor is there reason to think that defendants selected or took any action at all with respect to ISIS' content (except, perhaps, blocking some of it). Indeed, there is not even reason to think that defendants carefully screened any content before allowing users to upload it onto their platforms. If anything, the opposite is true: By plaintiffs' own allegations, these platforms appear to transmit most content without inspecting it.

The mere creation of those platforms, however, is not culpable. To be sure, it might be that bad actors like ISIS are able to use platforms like defendants' for illegal—and sometimes terrible—ends. But the same could be said of cell phones, email, or the internet generally. Yet, we generally do not think that internet or cell service providers incur culpability merely for providing their services to the public writ large. …

To be sure, plaintiffs assert that defendants' "recommendation" algorithms go beyond passive aid and constitute active, substantial assistance. We disagree. … Viewed properly, defendants' "recommendation" algorithms are merely part of that infrastructure. All the content on their platforms is filtered through these algorithms, which allegedly sort the content by information and inputs provided by users and found in the content itself. As presented here, the algorithms appear agnostic as to the nature of the content, matching any content (including ISIS' content) with any user who is more likely to view that content.

There are some differences in the Character.AI case—most especially that there is no other third-party bad actor that can be held morally or legally responsible in this case. But the key is that the court assigned a duty of care to the defendant based on a very early action—offering the Character.AI service at all—rather than based on conduct and decisions that put a narrow set of vulnerable people at heightened risk of a particular hazard. Said the court:

Defendants, by releasing Character A.I. to the public, created a foreseeable risk of harm for which Defendants were in a position to control.

This sweeps much too broadly, in my view.

My Take

As a policy matter, I see the logic of establishing duty in this case to make sure there is an incentive in the industry to develop AI in a way that reduces risks to vulnerable users or to third parties. If the court had limited its finding of duty to certain facts—such as the plaintiff's age—it would be harder to find fault with the court's approach. But on balance, I believe market and reputational forces will do enough to induce reasonable AI precautions, and formal tort duty is likely to cause overdeterrence unless it is carefully cabined. The general duty of care established in this case will force the AI industry to aggressively monitor and police its users, to the detriment of all. Requiring AI companies to guard against the full range of risks will severely harm AI development. The pruning will cut off the branch that feeds the root.

More generally, I can't help but return to the nature of this case as a state intrusion into the life of the mind. I fear we have lost faith in the most basic commitment to free thought. From one of the Ozzy cases [with citations removed]:

The life of the imagination and intellect is of comparable import to the presentation of the political process; the First Amendment reaches beyond protection of citizen participation in, and ultimate control over, governmental affairs and protects in addition the interest in free interchange of ideas and impressions for their own sake, for whatever benefit the individual may gain. The rights protected are not only those of the artist to give free rein to his creative expression, but also those of the listener to receive that expression. The central concern of the First Amendment … is that there be a free flow from creator to audience of whatever message a film or book might convey. The central First Amendment concern remains the need to maintain free access of the public to the expression.

I believe, in this case, that the teenager who took his life had become obsessed with the AI character that he had developed. It is a tragedy, and it would not have happened if Character.AI had not existed. But that is not enough of a reason to saddle a promising industry with the duty to keep all people safe from their own expressive explorations.

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[Eugene Volokh] Submit Your Articles to the Journal of Free Speech Law, Before You Circulate Them to the Law Reviews

[We'll give you an answer within 14 days, and we can publish them within several weeks, if you'd like.]

Our peer-reviewed Journal of Free Speech Law, which is now four years old, has published over 100 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.) The articles have been cited so far in 11 court cases, over 325 articles, and at least 100 briefs. And note that all the articles have only had four years or less to attract these citations.

I expect that many authors are planning to submit articles on free speech to the usual law reviews when the submission cycle restarts in August. But if you submit exclusively to us before that, we will give you an answer within 14 days; and then if you'd like to have it published quickly, we can publish it in within several weeks, if it's sufficiently clean and cite-checked by your research assistant. This means your article can be published by us, if it's accepted, almost a year (or more) before it would be published by the law journals.

Of course, also please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.

All submissions must be exclusive to us, but, again, you'll have an answer within 14 days, so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:

Instead of a cover letter, please submit at most one page (and preferably just a paragraph or two) explaining how your article is novel. If there is a particular way of showing that (e.g., it's the first article to discuss how case X and doctrine Y interact), please let us know. Please submit articles single-spaced, in a proportionally spaced font. Please make sure that the Introduction quickly and clearly explains the main claims you are making. Please avoid extended background sections reciting familiar Supreme Court precedents or other well-known matters. We prefer articles that get right down to the novel material (if necessary, quickly explaining the necessary legal principles as they go). Each article should be as short as possible, and as long as necessary. Like everyone else, we like simple, clear, engaging writing. We are open to student-written work, and we evaluate it under the same standards applicable to work written by others.

We publish:

Articles that say something we don't already know. Articles with all sorts of approaches: doctrinal, theoretical, historical, empirical, or otherwise. Articles dealing with speech, press, assembly, petition, or expression more broadly. Generally not articles purely focused on the Free Exercise Clause or Establishment Clause, except if they also substantially discuss religious speech. Articles about the First Amendment, state constitutional free speech provisions, federal and state statutes, common-law rules, and regulations protecting or restricting speech, or private organizations' speech regulations. Articles about U.S. law, foreign law, comparative law, or international law. Both big, ambitious work and narrower material. Articles that are useful to the academy, to the bench, or to the bar (or if possible, to all three). Articles arguing for broader speech protection, narrower speech protection, or anything else.

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[Keith E. Whittington] Academic Freedom Podcast on Rescinding Harvard's Tax Exempt Status

[Can Trump do that, and what would it mean?]

A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.

This episode features a conversation with Daniel Hemel on President Donald Trump's threat to rescind the tax exempt status of Harvard University. Hemel is a professor of law at New York University Law School, with an expertise in taxation, nonprofit organizations, and constitutional law.

On the podcast we discuss how private universities fit into the federal tax code, the legalities of altering the tax exempt status of a university, the implications for the future of a university subjected to such an action, the risks to other nonprofits beyond higher education if the administration were to take such a step, and the intricacies of the controversy over Bob Jones University and the legacy of Bob Jones University v. United States.

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[Josh Blackman] District of Maryland Standing Order: Any Filed Habeas Petition Will Automatically Block Removal Of Alien

["[U]pon the filing of a Petition for Writ of Habeas Corpus . . . the Government/Respondents, including all those acting for them or on their behalf, are ENJOINED and RESTRAINED from removing Petitioners in such cases from the continental United States"]

A lawyer flagged a new standing order from the District of Maryland. It provides, in part:

ORDERED by the United States District Court for the District of Maryland that upon the filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on behalf of an alien detainee, the Government/Respondents, including all those acting for them or on their behalf, are ENJOINED and RESTRAINED from removing Petitioners in such cases from the continental United States or altering their legal status, provided that Petitioner's full name and A# have been provided to the Court, either in the Petition or in a separate sealed filing.

Am I reading this right? If a lawyer files a conforming habeas petition, an injunction is automatically entered blocking the removal of the alien. The merits are irrelevant. And this injunction applies to the government, writ large. Has anyone ever seen an order like this before?

This order is pretty clearly designed to thwart the Trump Administration's immigration policies. I can't imagine this order would remain in effect if a different President is in the White House.

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[Ilya Somin] Forbes Interview on Developments in Our Case and Other Litigation Against Trump's "Liberation Day" Tariffs

[I was interviewed by Brittany Lewis of Forbes.]

Earlier today, Forbes interviewed me about developments in the case challenging Donald Trump's massive "Liberation Day" tariffs brought by the Liberty Justice Center and myself on behalf of five US businesses harmed by the tariffs. We also discussed today's oral argument in the similar case brought by twelve states led by Oregon. I may have more to say about the Oregon argument later. For now, I will note (as I also indicated in the Forbes interview), that I tentatively think that argument went well for the states plaintiffs. As in the argument in our case last week, the judges seemed highly skeptical of the government's claim that the International Emergency Economic Powers Act of 1977  (IEEPA) gives the president virtually unlimited power to impose tariffs. Here is the video of the interview:

I should perhaps note I was not the one who came up with the title of the Forbes video. I'm not actually "the lawyer behind [the] lawsuit."  I am just one part of a team.

I have gone over the legal issues rasied by Trump's IEEPA tariffs in greater detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War." See also my post on why these tariffs threaten the rule of law.

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[Orin S. Kerr] Monty Python, The Holy Grail, and the Idea of Due Process

["How do you know she's a witch?"]

The idea of due process can be a difficult legal concept for a lot of non-lawyers.  But you can get the basic idea from Monty Python's classic movie, Monty Python and the Holy Grail.  You just need to watch a single scene, the "she's a witch!" scene, which is here:

You probably remember the scene, at least if you're of a certain age.  To recap: The mob has found a witch, and they're very excited to burn her.  They come to Bedevere and ask for his permission to do it.  Bedevere pauses and asks,  "How do you know she's a witch?"   The crowd can't come up with a good reason.  Bedevere then insists that there are ways of telling if she's a witch, and he leads the mob to a scientific test of that proposition.

The method Bedevere devises is absurd.  Witches and wood both burn, the medieval logic goes, so witches must be made of wood. And wood and ducks both float, so if she weighs the same as a duck, she must be a witch! They get a big scale and weigh her and a duck; the scale being even proves she's a witch.  It's all exceedingly silly, of course.  But it impresses a watching King Arthur, who knights Bedevere and invites him to join the Round Table.

At one level, the scene is a hilarious spoof of the bizarre ways they tried to identify who was a witch in medieval England. Those methods weren't all that different from weighing the accused against a duck. In particular, the scene echoes the medieval practice of swimming a witch, where they would submerge a suspected witch under water to see if they sunk to the bottom or floated. (Innocent people would sink to the bottom, but witches would float above the water, they thought.)

But more importantly, the scene is also about due process.  The mob is positive the woman is a witch. Bedevere asks the key question, but how do you know she is one?  The crowd first invokes the fake nose and the hat they put on her to make her look like a witch. Bedevere is unimpressed.  He then introduces the basic idea of due process: Before taking the action of burning the woman as a witch, there should be a process for developing and evaluating evidence that she is one.

The absurdity of the process Bedevere proposes makes the same point.  In the unenlightened medieval times, the script writers are telling us, they didn't understand how to test what is true.  The process Bedevere came up with was silly. It had no ability to help a fact finder discover if she was a witch or not.  And it seems to have been fixed, too, with the woman clearly not weighing the same as a duck but the two coming out the same weight.  The accused even breaks the fourth wall and speaks directly to the camera about it.  She sarcastically comments: "It's a fair cop," British slang for "that's a fair process; yeah, you got me."  Of course, it was not a fair process at all. It was a process, but not a fair one.

The lawyerly idea of due process, it seems to me, is all about Bedevere stopping the crowd and asking how they know she's a witch.  And then it's a matter of figuring out what procedures should be in place to tell if the crowd's belief is true. (Of course, they're stacking the deck because we know today that witches don't exist in the first place. But it's only a model, er, a movie.)

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[Ilya Somin] Upcoming Speaking Engagements

[Ilya Somin's upcoming speaking engagements.]

(NA)

I have been remiss this semester in failing to post my usual list of upcoming speaking engagements. However, I do have some coming up in the next several weeks that I would like to list for interested readers. Unless otherwise noted, all are in person and open to the public.  I may update this post with additional events. Below, I also note some information on earlier engagements for which video or audio is available.

May 27, 12-1:00 PM, Cato Institute, Washington, DC: "Tariffs, Emergencies, and Presidential Power." (panel with Cato Institute scholar Walter Olson). Virtual event. Free registration available here.

May 31, 3-4 PM, Pruyne Lecture Hall, Fayerweather Hall, Amherst College, Amherst, MA: "Challenges Facing American Democracy." This event is primarily for Amherst College alumni, students, and employees (part of Amherst's 2025 alumni reunion activities). But I think members of the general public can come if space allows.  See here for more details about my talk, and other events that day.

June 13, 10:15-12:15 AM, Connecticut Legal Conference (annual conference of the Connecticut Bar Association), Connecticut Convention Center, 100 Columbus Blvd., Hartford, CT: Panel on "SCOTUS: What's Next" (covering recent and upcoming Supreme Court decisions). Other participants are G. Eric Brunstad, Jr. (Yale Law School, Dechert, LLP), and former Connecticut Supreme Court Justice Joette Katz (moderator). More detailed information here. This event is restricted to attendees of the Connecticut Legal Conference.

June 13, 2-3:30 PM, Connecticut Legal Conference (annual conference of the Connecticut Bar Association), Connecticut Convention Center, 100 Columbus Blvd., Hartford, CT: Panel on "Kelo v. City of New London 20th Anniversary: Views from the Bench, Bar and Academia."  Other participants are Wesley Horton (counsel for New London in the Kelo case); Justice Peter Zarella (retired Justice, Connecticut Supreme Court); and Justice Joette Katz (retired Justice, Connecticut Supreme Court, serving as the moderator). This event is restricted to attendees of the Connecticut Legal Conference.

Audio and/or video of some of my previous speaking engagements and podcasts for the last several months is available at the Cato Institute website here, and also at the National Constitution Center site here.

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[Ilya Somin] Upcoming Cato Institute Virtual Event on "Tariffs, Emergencies, and Presidential Power"

[I will be speaking, along with Cato Institute scholar Walter Olson.]

On Wednesday, May 27, 12-1 PM, the Cato Institute will hold a virtual event on "Tariffs, Emergencies, and Presidential Power." Registration is free and available here. We will, among other things, discuss the case challenging Donald Trump's massive "Liberation Day" tariffs brought by the Liberty Justice Center and myself on behalf five US businesses harmed by the tariffs. I have gone over the legal issues rasied by Trump's IEEPA tariffs in greater detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War." See also my post on why these tariffs threaten the rule of law.

Here is a description of the upcoming Cato event:

Can the president unilaterally impose tariffs under his emergency powers? In this webinar, legal scholars Ilya Somin, a professor at Antonin Scalia Law School at George Mason University who is co-counsel in the pending tariffs case VOS Selections v. Trump, and Walter Olson explore the constitutional and statutory limits of presidential authority under the International Emergency Economic Powers Act (IEEPA) and other statutes. They'll discuss President Trump's recent efforts to justify sweeping trade measures under IEEPA, examine the historical role of Congress in setting tariffs, and consider broader stakes for the separation of powers. Whether you're a lawyer, policymaker, or interested observer, this conversation will shed light on one of the most important trade and constitutional questions of our time.

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[Josh Blackman] J.D. Vance to Chief Justice Roberts: The Judiciary Must Check Its Own Excesses

[Did Roberts really think he could lob bombs at the elected branches and face nothing in return?]

Vice President J.D. Vance sat down for an interview with Ross Douthat. They cover much ground, but I wanted to flag this exchange concerning Chief Justice Roberts:

Let me just make one final philosophical point here. I worry that unless the Supreme Court steps in here, or unless the District Courts exercise a little bit more discretion, we are running into a real conflict between two important principles in the United States.

Principle 1 of course is that courts interpret the law. Principle 2 is that the American people decide how they're governed. That's the fundamental small-d democratic principle that's at the heart of the American project. I think that you are seeing, and I know this is inflammatory, but I think you are seeing an effort by the courts to quite literally overturn the will of the American people. To be clear, it's not most courts. But I saw an interview with Chief Justice Roberts recently where he said the role of the court is to check the excesses of the executive. I thought that was a profoundly wrong sentiment. That's one-half of his job. The other half of his job is to check the excesses of his own branch. You cannot have a country where the American people keep on electing immigration enforcement and the courts tell the American people they're not allowed to have what they voted for. That's where we are right now.

We're going to keep working it through the immigration court process, through the Supreme Court as much as possible.

Vance is exactly right.

I think the Chief Justice largely lives in a bubble where everyone is afraid to challenge him. He sees himself as a singular force of good to save the rule of law. In Roberts's mind, he can take a shot at the incoming Vice President in his end-of-year address, and everyone will simply submit to his will. No. Vance is fighting back. Roberts thinks he can lecture the President that no judge, even members of the Supreme Court can be impeached; we the people simply have to take it. No. Vance is fighting back.

And, I think, lower court judges are starting to fight back as well. Judge Ho made this same point in his concurrence yesterday, which subtly responded to Chief Justice Roberts:

It is not the role of the judiciary to check the excesses of the other branches, any more than it's our role to check the excesses of any other American citizen. Judges do not roam the countryside looking for opportunities to chastise government officials for their mistakes.

Yet Roberts does exactly that. Every action has an equal and opposite reaction.

There is a storm brewing on the horizon, and I don't think the Chief quite sees it. As I will explain in a forthcoming essay, Roberts's two decades on the bench have rendered him utterly unqualified to deal with what lies ahead. The arc from NFIB to AARP does not bode well for the future. Here is a preview:

It is often repeated that we have three, co-equal branches of government. But that simply isn't true. Alexander Hamilton described the judiciary as the "least dangerous branch." Unlike the Congress, which has the power of the "purse," and the President who wields the power of the "sword," the courts have "merely judgment." Yet, it has been deeply ingrained in our national consciousness that the foundational role of the courts is to balance the power of the elected branches. Indeed, Chief Justice John Roberts boasted that the courts must "check the excesses of Congress or the executive." But who will check the excesses of the judiciary? The greatest check on the courts can only be the widely held belief that the Court is not ruling based on politics. But if people believe the judiciary is simply a mediator that weighs political compromise, then the courts cannot long endure. 

Roberts's colleagues should, sooner rather than later, cut the tether and listen to Justices Alito and Thomas. These national treasures should not retire, as they are the only ones speaking sense.

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