Kevin T. Frazier
Minnesota legislators are considering a troubling amendment to their state constitution. In short, the amendment would carve AI out of the state’s protection of free speech. It’s flagrantly in violation of the US Constitution but merits further analysis.
As state legislators propose more and more AI laws, there’s a risk that poor policy ideas will be deemed acceptable relative to even more extreme suggestions like this proposed amendment. That’s why it is important to specify the flaws with this and all subsequent proposals that single out AI for special legal treatment. In brief, this amendment would be contrary to the intended function of state constitutions and conflict with the foundational right of free speech, as understood by the Founders and enshrined in the US Constitution.
The traditional understanding of state constitutions is that they can serve as an additional source of liberty for citizens by providing clarity and further guarantees of certain rights. State constitutional law textbooks, for instance, contain whole sections on the unique rights and freedoms available in certain states. There’s the “right to know” in Montana, which specifies that “no person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government.” There’s the “right to privacy” in Florida, which guarantees residents the “right to be let alone and free from governmental intrusion into the person’s private life.” And there’s the right to hunt and fish—a constitutional protection spelled out in twenty-four states.
The throughline here is that state constitutions have long been a vehicle for prohibiting government intervention into important personal, social, and economic domains. Minnesota legislators want to instead inhibit individual freedom via a constitutional amendment that would exclude AI from the state’s guarantee of the “right to freely speak, write, and publish sentiments.”
This push marks yet another hasty move by state legislators to treat AI as a bogeyman and to subject its use to special, unwarranted treatment. States have introduced more than 1,500 AI-related bills since the start of this AI era. Many of those bills directly imperil core liberties, such as the right to access information. New York legislators, for instance, are weighing a bill that would greatly inhibit residents’ use of AI by barring models from sharing substantive responses for more than a dozen licensed occupations. Of course, no one in Albany is suggesting a similar limitation on accessing legal books or therapy monographs at the local library.
A lack of familiarity with and understanding of AI has led to it being singled out, regardless of the very real and predictable threats to individual liberty that may arise. The fact that some Minnesota legislators are willing to entrench a fear of AI into their state constitution signals the depth and breadth of legislative opposition to AI.
If states seek to restrict core liberties, the US Constitution still provides a bulwark against such harms. This specific amendment has low odds of being enforced, even if approved by the legislature and ultimately adopted, but that doesn’t mean its problems should be ignored. The Founders were adamant in their support for free expression and personally understood why it was critical to a free society. In turn, they championed and defended access to the primary tool for self-expression at their time—the printing press.
A quick review of how they sought to protect free expression and the exchange of ideas at the state and federal levels proves that point. The Virginia Declaration of Rights, for example, asserted, “the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.” Similarly, the Massachusetts Declaration of Rights sets forth that “the liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth.” Famously, Jefferson went so far as to write:
the basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. but I should mean that every man should receive those papers & be capable of reading them.
Most importantly, the Founders safeguarded individuals’ rights to speak, learn, and associate through the First Amendment and made those rights, along with other protections, the law of the land under the Supremacy Clause. While states may afford individuals additional liberties, they may not trespass upon those guaranteed by the Constitution. It’s fair to guess that members of the Founding Generation would not look fondly upon a state trying to reduce the use of a tool that allows more people to exchange more ideas and pursue additional knowledge.
The Founders’ concerns would not end there. This proposal indicates a continued transformation of the law as something that protects the “freedom to” versus providing “freedom from.” The former framing prioritizes individual will and expression. The latter invites the state to restrict and confine how we work, communicate, and self-govern. This phenomenon—known as “juridification” to scholars—is particularly concerning. The more the law shapes the contours of daily life, the less practice Americans will have exercising those core democratic traits.
Regardless of the success or failure of the Minnesota proposal, it is never too early to express alarm over individuals inviting the government to control more aspects of our daily lives. We should not let the disruption seen from innovation be an excuse to do so.