The First Amendment and Its Protections for Writers and Publishers

Of the 10 amendments that make up the US Bill of Rights, none are more relevant to writers and publishers than the first. The First Amendment of the US Constitution gives individuals and the press the right to free speech, allowing individuals to write and publish without government interference.

At least to a certain extent.

While the First Amendment offers protection in most freedom of speech cases, there are certain situations where it doesn’t apply. Granted, some of these exceptions have been around for a while, but with the shift from traditional print journalism to online content being created by bloggers and the use of artificial intelligence, the issue has become more complicated than ever. 

One of the primary questions surrounds the rights of online content creators. Do online content creators have the same First Amendment protections as journalists? Or are they on their own?

In this article, we hope to clarify the First Amendment rights for writers and publishers. We’ll explore what is and what isn’t currently covered by the amendment and how it applies to online content and artificial intelligence.

What Is the First Amendment, and What Protections Does It Offer Writers and Publishers?

The First Amendment of the Bill of Rights is as follows:

‍“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Source: Constitution Annotated)

While they may have been originally created for an offline world, it’s easy to see examples of these rights online as well. For example, you could consider social media platforms and discussion forums as places for people to assemble, and there are plenty of certainly religious websites out there as well.

But, of course, the section about the freedom of speech and the press is the one most relevant to writers and publishers. This guarantees that generally speaking, you can create and distribute content on just about whatever you like without fear of government censorship.

The key words though, are “just about” — you don’t have total freedom when it comes to what you write and publish, whether it's online or not.

What Are the Limitations on the First Amendment Protections to Writers and Publishers?

According to the American Library Association in their article on the First Amendment, freedom of speech does not cover:

• Obscenity, commonly determined by the Miller test
• False advertising
• True threats
• Fighting words, or words meant to provoke violence
• Defamation, including both libel (written defamation) and slander (verbal defamation)

So, as long as writers and publishers steer clear of these categories of unprotected speech, your publications should be protected by the First Amendment. 

However, these protections were in place long before the digital age. Does this mean they apply to online content creators like bloggers as well?

Are Bloggers Protected by the First Amendment?

Just like print journalists, bloggers are indeed protected by the First Amendment. In fact, everyone has had the right to freedom of speech on the internet since 1997.

In Reno v. American Civil Liberties Union, the United States Supreme Court ruled that the First Amendment protects internet communications to the same extent as print publications. But it wasn’t until the defamation case of Obsidian Finance Group, LLC v. Cox that bloggers were officially given the same freedom of speech protections as traditional journalists.

Is Social Media Content Protected by the First Amendment?

While online content writers can enjoy their First Amendment protections when posting on a traditional website, things are a little different when it comes to social media sites. 

Since they’re privately owned, the University of Wisconsin-Milwaukee notes that social media platforms like Facebook, X (formerly Twitter), and Reddit aren’t bound by the First Amendment. This means they can moderate the content on their sites as they see fit without violating anyone’s First Amendment rights.

But this doesn’t mean that they aren't experiencing any pushback. According to a Reuters article, Texas and Florida have passed similar laws attempting to restrict the power of social media companies to demote or delete user content. However, the US Supreme Court has yet to deliver a verdict. 

And the First Amendment-related issues on the internet don’t stop there — enter artificial intelligence.

Is AI Protected by the First Amendment?

If we’re talking about ChatGPT and similar generative AI programs, then no, according to Yale Law School, artificial intelligence itself isn’t protected by the First Amendment. 

Large language models and the like may produce some human-like content, sure, but technologies don’t have rights — people do. Therefore, the question shouldn't be about whether AI programs have rights. It should be about whether the First Amendment protects the use of generative AI.

And the answer is…not quite clear yet.

Technically, since some courts have established that computer code counts as speech and can receive First Amendment protections, AI use should fall under that category. Yet if you look at some of the recent court cases surrounding AI and defamation (which, if you can recall, is not protected by the right to freedom of speech), people are suing the AI companies and not the users.

So, while the use of generative AI should receive First Amendment protections, who is ultimately liable for unprotected speech is still up in the air. In the meantime, if you or your writers use AI writing tools for content creation, then it’s best to use them carefully if you want to avoid potential defamation lawsuits of your own.

For example, you could use an AI checker to scan web content and then take a closer look at any sections that may have been generated by artificial intelligence. 

‍If AI creates statements in your content that could be considered defamatory, obscene, or another form of unprotected speech, edit or remove them to avoid liability.

Final Thoughts

The First Amendment offers many protections to writers and publishers, but it’s important to keep in mind that the right to freedom of speech isn’t totally free. There are unprotected forms of speech that you should avoid in your content, whether you’re an online content writer or print journalist.

It should be noted that with the rapidly evolving nature of technology and the internet, the rules could change. The slow-moving legal system is having a hard time keeping up with the latest advancements, so the First Amendment protections for writers and publishers today could very well change in the near future.

Keep an eye on the news and stick to the protected forms of speech to stay well within your First Amendment rights.