Minnesota may have an interest in regulating certain uses of AI, but it does not have the power to prohibit millions of protected uses of the technology along with them.
Artificial intelligence is transforming how Americans create, communicate and express themselves. Like the printing press, photography, radio, television and the internet before it, AI is a powerful new medium for expression.
The First Amendment protects that freedom—not because of the technology Americans use, but because of the ideas they seek to express.
The Liberty Justice Center filed a friend-of-the-court brief in xAI LLC v. Ellison because constitutional freedoms do not become obsolete when technology evolves.
Minnesota enacted HF 1606 in an effort to regulate nonconsensual AI-generated explicit images and videos. Whether and to what extent the government may constitutionally prohibit such images presents difficult First Amendment questions that the court does not need to resolve in this case. HF 1606 fails for a more fundamental reason: It prohibits vast amounts of protected expression having nothing to do with the speech Minnesota sought to address.
Our Constitution does not give government greater power to regulate expression simply because the technology used to create it is new. The First Amendment protects the freedom to communicate—not just the technologies Americans happened to use in 1791.
“The First Amendment has protected every communications revolution in American history. Artificial intelligence is no exception.”
This case asks a fundamental question: Can the government prohibit millions of lawful uses of artificial intelligence in an effort to regulate a narrower category of potentially harmful ones?
Our answer is no.
Minnesota may have an interest in regulating certain nonconsensual AI-generated images or videos featuring nudity and violating someone’s privacy. But instead of narrowly targeting the specific speech it sought to address, HF 1606 sweeps millions of lawful uses of artificial intelligence into its prohibition.
Not only is HF 1606 unconstitutionally overbroad, it is also nonsensical. HF 1606 contains no requirement that an image be created with intent or knowledge, and it can impose liability even when an image is consensual and never shared publicly. As written, a person in Minnesota could use xAI’s product to create an image of themselves at the beach in a bathing suit, never share it with anyone, and xAI could face liability of up to $500,000. Whatever objective Minnesota seeks to advance, it must pursue that objective in a way that complies with the Constitution and makes sense.
The First Amendment requires precision whenever the government regulates speech. HF 1606 is anything but precise.
Throughout American history, every major communications technology has been met with fear and uncertainty.
The printing press.
Photography.
Radio.
Television.
The internet.
Each transformed how people exchanged ideas. Each prompted calls for greater government control. And each ultimately reaffirmed the same constitutional principle:
The First Amendment protects the freedom to communicate, regardless of the medium.
Artificial intelligence is simply the newest chapter in that history.
The constitutional protections that apply to newspapers, books, photographs, films, websites and social media apply just as fully when Americans use AI to create and share ideas.
The Liberty Justice Center’s friend-of-the-court brief explains why Minnesota’s law violates the First Amendment.
Our brief argues that:
The Liberty Justice Center litigates cases that define the constitutional limits of government power. This case presents a question that extends far beyond one state—or one AI company. It asks whether Americans will continue to receive the full protection of the First Amendment as technology evolves.
We believe they must.
The Constitution protects the freedom to create, communicate, persuade, criticize, innovate and debate—regardless of the tools Americans use to express themselves.
Technology will continue to evolve. The First Amendment is timeless.
Check back soon for more about this brief in the news.
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