Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: US Attorney General Pam Bondi threatened to go after hate
Speaker 2: speech on a podcast last week. We will absolutely target you,
Speaker 2: go after you if you are targeting anyone with hate
Speaker 2: speech anything, and that's across the aisle. Bondy was wrong.
Speaker 2: Hate speech is not a crime. In fact, hate speech
Speaker 2: is free speech protected by the First Amendment. Just ask
Speaker 2: the Supreme Court. Conservative Justice Samuel Alito wrote in twenty seventeen, quote,
Speaker 2: the proudest boast of our free speech jurisprudence is that
Speaker 2: we protect the freedom to express the thought that we hate.
Speaker 2: Bondi's remarks true criticism across the political spectrum, and she
Speaker 2: tried to walk them back with some confusing posts on
Speaker 2: x is. First Amendment expert Timothy Zick, a professor at
Speaker 2: William and Mary Law School, Tim, can you define hate
Speaker 2: speech for US?
Speaker 3: Well, it doesn't have a definition in US law or
Speaker 3: First Amendment jurisprudence. There's no category of hate speech that
Speaker 3: is unprotected under the First Amendment. That's in contrast to
Speaker 3: European countries and other countries that do have statutory prescriptions
Speaker 3: on speech that derrigates or criticizes people based on gender
Speaker 3: or race or some other protected characteristic, but if the
Speaker 3: Attorney General should know. In the United States in general,
Speaker 3: hate speech is not criminally prescribable.
Speaker 2: The Supreme Court has protected hate speech in more than
Speaker 2: one case. The one that stands out in my mind
Speaker 2: is Brandenburg versus Ohio, the case involving the Nazi Party
Speaker 2: marching in Skokie, Illinois, in nineteen seventy seven.
Speaker 3: Well, the Supreme Court, in that case and others, has
Speaker 3: come down on the side of freedom of expression right
Speaker 3: in the sense that the government cannot criminalize or otherwise
Speaker 3: punish the expression of viewpoints, even if those viewpoints are
Speaker 3: offensive or vile or derogatory. Right, So, even speach in
Speaker 3: support of Nazism, this is a general matter protected speech.
Speaker 3: Speech that offends people based on race, or gender or
Speaker 3: sexual orientation, that's also protected speech. And the Supreme Court
Speaker 3: has been consistent in drawing that line where it has
Speaker 3: in the sense that you know, whether it's Nazis marching
Speaker 3: in skoki that case reached the Supreme Court is actually
Speaker 3: a lower court case that decided, Look, the town of
Speaker 3: Skokey cannot enact all these ordinances to try and prevent
Speaker 3: Nazis from marching or displaying Nazi regalia. The Supreme Court
Speaker 3: protects viewpoints even if they're vile. There are some narrow exceptions, right,
Speaker 3: If you threaten another person's bothering or death, if you
Speaker 3: incite other people to engage in imminent unlawful activity that's
Speaker 3: likely to occur, those sorts of things are not protected.
Speaker 3: The government cannot have the power to tell an audience
Speaker 3: in the United States what speech is appropriate or too
Speaker 3: offensive to be heard.
Speaker 2: But the Court has recognized an exception to the First
Speaker 2: Amendment for threats of violence. How are they defined?
Speaker 3: That's a narrow exception to First Amendment protection. Right, So
Speaker 3: if you communicate what the Court is defined as a
Speaker 3: serious expression of an intent to inflict bodily harm or
Speaker 3: death on another person, then you can be punished for
Speaker 3: that kind of speech. But the narrowness here is sort
Speaker 3: of like, you know, it has to be a serious expression.
Speaker 3: It can't be something said in jets. It can't be
Speaker 3: hyperbolic language where you say, well, this person should be
Speaker 3: home for their crimes, right, that sort of thing. It
Speaker 3: has to be more directed, more specific, and as a
Speaker 3: Supreme has recently said uttered recklessly that you know there's
Speaker 3: a risk when you say the words that a person
Speaker 3: will perceive what you're saying is threatening, but you say
Speaker 3: it anyway. So it's not just threatening language. That's not
Speaker 3: unprotected speech. It's something far more specific than that. And
Speaker 3: when the Attorney General said, well, what I meant to say,
Speaker 3: it wasn't hate speech, really, it was threat Well, none
Speaker 3: of the speech that we've been talking about since Charlie
Speaker 3: Kirk's assassination, you know, constitutes threats. Right when you praise
Speaker 3: or celebrate someone's death, that's not a threat. So you know,
Speaker 3: she got it wrong twice. Essentially.
Speaker 4: She also said in her explanation, you can't call for
Speaker 4: someone's murder. You cannot swat a member of Congress, you
Speaker 4: cannot dos a conservative family and think it will be
Speaker 4: brushed off as free speech. These acts are punishable crimes,
Speaker 4: and every single threat will be met with the full
Speaker 4: force of the law.
Speaker 2: Are all the things she mentioned punishable.
Speaker 3: Well, some of them are protected, right. It depends on
Speaker 3: the sort of statute that you're looking at, you know,
Speaker 3: how narrowly it's defining harassment, for example, or threat calling
Speaker 3: for the murder of someone is not incitement. It is
Speaker 3: not a threat.
Speaker 1: Right.
Speaker 3: I wish you know so and so would die is
Speaker 3: a terrible thing to think, a terrible thing to say.
Speaker 3: But it's not unprotected expression under our First Amendment doctrines
Speaker 3: and jurisprudence. Yes, there's conduct that you can go after.
Speaker 3: If I repeatedly harass someone, whether it's online or offline,
Speaker 3: then that can rise to the level of harassment. But
Speaker 3: there I'm not being punished for my expression. I'm being
Speaker 3: punished for the act of repetitious harassment of another. And
Speaker 3: docting is difficult, right, because just publishing information about, say,
Speaker 3: where someone lives, is not necessarily unprotected speech, right. A
Speaker 3: lot depends on the contact. And again, as they said,
Speaker 3: it's statute under which you're reviewing it.
Speaker 2: And wasn't there a Supreme Court case a few years
Speaker 2: ago involving threats on the internet.
Speaker 3: Counterman versus Colorado. Yeah, that was this very recent threats
Speaker 3: case the Supreme Court handed down. There was a singer
Speaker 3: who had some uninvited online messages, tried to block the
Speaker 3: person from contacting her. He just opened new accounts and
Speaker 3: kept contacting her, and eventually this person was prosecuted for
Speaker 3: form of harassment, which is really what the case sort
Speaker 3: of set up as, but the court below and then
Speaker 3: the Supreme Court treated it as raising the question of
Speaker 3: whether this person had communicated we are called true threats,
Speaker 3: as I described earlier, serious expressions of an intent to
Speaker 3: cause bodiling, injury or death to another. And what the
Speaker 3: court was wrestling with in that piece is the mental
Speaker 3: state of the speaker. Well, how do I know whether
Speaker 3: the person's communicating a threat? And they say, if the
Speaker 3: person knows of a substantial risk that the person he
Speaker 3: is communicating with is when it perceives the speech is threatening,
Speaker 3: then that's the kind of recklessness that the First Amendment
Speaker 3: requires before you label something a true threat. So the
Speaker 3: court was grappling with a really important sort of technical
Speaker 3: issue in that case, which was a mental state required
Speaker 3: for the speaker, and a number of courts before that
Speaker 3: had sort of adopted this subjective test. Well, if I'm
Speaker 3: the audience for that speech and I perceive it subjectively
Speaker 3: is threatening, that should be enough. And the court was worried, well,
Speaker 3: that's not speech protective enough. That's going to cause misunderstandings
Speaker 3: to be translated into criminalized threats. We don't want that,
Speaker 3: but we also don't want a sort of lower standard,
Speaker 3: so let's find something in the middle, sort of a
Speaker 3: goldilocked standard. And they settled on recklessness.
Speaker 4: And so the Supreme Court has been would you say,
Speaker 4: particularly protective of free speech rights?
Speaker 3: I think that's its reputation right. I could probably come
Speaker 3: up with exceptions to that, but in general, I think
Speaker 3: it's fair to say that they're protective of freedom of speech.
Speaker 1: Yet we have, you.
Speaker 4: Know, the Attorney General's remarks. We had Todd Blanche, the
Speaker 4: Deputy Attorney General, said in an interview that people protesting
Speaker 4: while President Trump had dinner at a restaurant might have
Speaker 4: committed a crime. You have President Trump saying to ABC
Speaker 4: news reporter will probably go after people like you because
Speaker 4: you treat me so unfairly. It's hate. Why is there
Speaker 4: this misunderstanding of hate speech?
Speaker 3: Well, I don't know if it's a misunderstanding. I mean
Speaker 3: this has been sort of President Trump's a longstanding position.
Speaker 4: Right.
Speaker 3: He either doesn't understand or doesn't appreciate freedom of expression.
Speaker 3: So his view is that negative press isn't protected. You
Speaker 3: can pull the broadcast license of a broadcaster that publishes
Speaker 3: critical coverage of him. It consistingly negative right, That, of course,
Speaker 3: is contrary to the First Amendment. Going after your political
Speaker 3: enemies for things that they say is part of the
Speaker 3: sort of Trump mantra, but it is unconstitutional. And you
Speaker 3: know what's interesting to me is recently people have said, oh,
Speaker 3: we've crossed some line here where the president is threatening
Speaker 3: retribution at this political enemy. We are nine months into
Speaker 3: a retribution campaign. It's gotten louder, but it's been there
Speaker 3: the whole time. I mean they've gone after law firms,
Speaker 3: international students, the American Bar Association, and plenty of others
Speaker 3: up to this point. What's different is it's more explicit,
Speaker 3: I suppose one could say, and the drumbeat is getting louder.
Speaker 3: We're going to go after particularly so called left leaning
Speaker 3: speakers or organizations who say things that we don't like,
Speaker 3: and the First Amendment stands in complete opposition to that position.
Speaker 3: So what's changed. I mean, the kirk assassination horrific event,
Speaker 3: bound to create, you know, sort of turn and backlash,
Speaker 3: but the administration's answer to that has been again, we're
Speaker 3: going to go after the left so called and we're
Speaker 3: going to punish speakers who say nasty things about Charlie
Speaker 3: Kirk or President Trump, and the First Amendment just simply
Speaker 3: doesn't allow them to do that.
Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue
Speaker 2: this conversation with Professor Timothy Zick of William and Mary
Speaker 2: Law School. People across the country, from teachers and lawyers
Speaker 2: to airline pilots and healthcare workers, have been fired, suspended,
Speaker 2: or disciplined over social media posts about Charlie Kirk and
Speaker 2: his death. Why the First Amendment doesn't protect them. In
Speaker 2: other legal news, today, the Supreme Court said it will
Speaker 2: hear a Trump administration appeal that could topple a ninety
Speaker 2: year old president and put the White House in control
Speaker 2: of federal agencies that have long been independent. The Court's
Speaker 2: conservative majority also refuse to let the person at the
Speaker 2: center of the case, Federal Trade Commission Member Rebecca Kelly Slaughter,
Speaker 2: returned to her job during the appeal. Trump is trying
Speaker 2: to fire Slaughter despite a law that says commissioners can
Speaker 2: be removed only for specified reasons. The showdown gives conservatives
Speaker 2: and regulation opponents the chance to achieve a long sought
Speaker 2: goal of overturning the Supreme Court's nineteen thirty five ruling.
Speaker 2: And remember you can always get the latest legal news
Speaker 2: by listening to our Bloomberg Law podcast wherever you get
Speaker 2: your favorite podcasts. I'm June Grosso and this is Bloomberg.
Speaker 2: Last week, Vice President j D Vance encouraged people to
Speaker 2: report anyone celebrating Charlie Kirk's murder to their employers.
Speaker 1: So when you see someone celebrating Charlie's murder, call them
Speaker 1: out in hell, call their employer.
Speaker 3: We don't believe in political violence, but we do believe
Speaker 3: in civility.
Speaker 2: And across the country, people have been fired, suspended, or
Speaker 2: disciplined over social media posts about Kirk, from teachers and
Speaker 2: lawyers to airline pilots and healthcare workers. Many employers have
Speaker 2: cracked down on remarks they deem inappropriate. I've been talking
Speaker 2: to Professor Timothy Zick of William and Mary Law School.
Speaker 3: The rules are different for private and government speakers. Right,
Speaker 3: So if you're talking about a private employee and at
Speaker 3: will employee who can be dismissed for any reason at
Speaker 3: all or no reason, then they can be dismissed for
Speaker 3: speech that they publish or communicate. There are only a
Speaker 3: few states where you get some statutory protection for political speech,
Speaker 3: but in general, you speak at your peril. With respect
Speaker 3: to private employment, public employment is very different. Public employees
Speaker 3: retain some First Amendment rights as citizens to speak on
Speaker 3: what are called matters of public concern newsworthy matters, which
Speaker 3: certainly covers the speech that has been sort of debated
Speaker 3: a post Charlie Kirks murder. And it's complicated. Right, So,
Speaker 3: if you're a public employee and you say something offensive,
Speaker 3: Let's say you praise Charlie Kirks murder, and you're a
Speaker 3: university professor, let's say, and your employer says, well, I'm
Speaker 3: going to terminate your employment. Well, putting aside the sort
Speaker 3: of tenure and academic freedom problems there, as a public employee,
Speaker 3: you have a First Amendment right to communicate that. Let
Speaker 3: the Supreme Court has said, what you get as a
Speaker 3: public employee if you speak on matters of public concern
Speaker 3: is a balance. We're going to balance your right to
Speaker 3: speak against the employer's interest in efficient operations. So across
Speaker 3: a range of public employment, what you might find in
Speaker 3: some cases is that courts will side with the employer.
Speaker 3: What you said was so offensive it created disruption in
Speaker 3: the workplace, and we're not required to tolerate that. The
Speaker 3: first women doesn't require that we tolerate that. So it
Speaker 3: can be complicated to respect the public employment, but it's
Speaker 3: much simpler with regard to private.
Speaker 4: The Supreme Court has taken a lot of cases involving
Speaker 4: the Trump administration on the emergency docket, but none of
Speaker 4: them that I can recall, involved a free speech issue.
Speaker 4: Are you confident that the Court, if one of these
Speaker 4: cases on hate speech came up to the court, that
Speaker 4: they would stick by their precedent.
Speaker 3: I think they would. I think, you know, the likelihood
Speaker 3: of the Court taking a First Amendment case out of
Speaker 3: what i'll call the Trump two point zero era, it's
Speaker 3: relatively high. It's not clear yet what the administration intends
Speaker 3: to do with respect to so called hate speech investigations
Speaker 3: or prosecutions. It's mostly what they're doing is threatening to
Speaker 3: investigate people for core political speech. We wouldn't even be
Speaker 3: talking about hate speech. It would be more you know,
Speaker 3: I'm going to go after George Soros organization because it
Speaker 3: supports left wing positions or its funds left wing political
Speaker 3: activistm what's clearly unconstitutional. I don't even know if the
Speaker 3: Supreme Court would be interested in a case like that.
Speaker 3: I'm assuming a lower court would say that's unconstitutional. But
Speaker 3: there are cases in the First Amendment realm that may
Speaker 3: make it to the Court, some of them involving maybe
Speaker 3: the rights of non citizens under the First Amendment, which
Speaker 3: the Court has been unclear about if they want to
Speaker 3: clarify that. Some of the university cases, the Harvard case,
Speaker 3: for example, or the administration is the terminating funds the
Speaker 3: university says based on their speech, and the Court may
Speaker 3: be interested in that. Or maybe there'll be a press
Speaker 3: case who knows and involving a broadcast license or something
Speaker 3: like that. I can imagine the Court being interested in
Speaker 3: those cases.
Speaker 4: In those cases that you've mentioned, for example, the Harvard case,
Speaker 4: let's just take one. Is it difficult to prove that
Speaker 4: the administration is going after Harvard because of its speech?
Speaker 3: Well, the administration is its own worst enemy with regard
Speaker 3: to so called retaliation claims. Right, So one of the
Speaker 3: things you asked is, well, why did the Trump administration
Speaker 3: target Harvard for termination of funds? And let's add the
Speaker 3: other ten investigations to Harvard and faith it can be
Speaker 3: hard to prove, right, because the administration to that said, oh, no,
Speaker 3: we did that because of anti semitism on campus. And
Speaker 3: you start looking into that and say, well, you never
Speaker 3: help an investigation. You never found any facts. She didn't
Speaker 3: follow the law. What I'm left with is, you know,
Speaker 3: public statements by the Education Secretary not to mention the
Speaker 3: President of the United States that what we need to
Speaker 3: do is bring these universities to heal because they're too liberal,
Speaker 3: because their culture is too liberal, it's too less leaning.
Speaker 3: Well that gives it away, I assuming you can take
Speaker 3: the president's communications into account, but even if you can't,
Speaker 3: the Education Secretary has said this is what conservatives they
Speaker 3: wanted to do for a long time, to sort of
Speaker 3: lean on these universities who are indoctrinating students as the
Speaker 3: left wing ideology. So it's all very explicit. Right in
Speaker 3: other contexts, and say past administrations or different governments, it
Speaker 3: might not have been so explicit, but they're very, very transparent.
Speaker 3: I think the Trump administration about what they're trying to do.
Speaker 2: ABC is putting the Jimmy Kimmel Show back on the
Speaker 2: air tomorrow night. But would you say that FCC Chair
Speaker 2: Brendan Carr's statements about Kimmel would fit into that category
Speaker 2: you were just describing.
Speaker 3: The difficulty here is that Brendan Carr, the chair of
Speaker 3: the Federal Communications Commission, went on a podcast and threatened
Speaker 3: ABC if it didn't do something. He said, we can
Speaker 3: do this the easy way or the hard way, and
Speaker 3: he's clearly threatening their broadcast license or at least the
Speaker 3: licenses of their affiliates. That's who holds the licenses. So
Speaker 3: the government inserts itself. It's another one of these examples
Speaker 3: where you know, ordinarily it might be difficult to say
Speaker 3: what role, if any of the government played. Well, here
Speaker 3: he is on podcasts telling you I'm going to abuse
Speaker 3: the fpc's authority by jaw owning and threatening licensed affiliates.
Speaker 3: But for speech that we think we the Trump administration
Speaker 3: think is offensive with regard to Charlie Kirk, Now they
Speaker 3: pitched this sort of misinformation or he got it wrong.
Speaker 3: Plenty of people got the facts wrong the early going
Speaker 3: with respect to Kirk's assailants, So that doesn't single Jimmy
Speaker 3: Kimmel out right. So there's sort of this sort of agenda,
Speaker 3: particularly in the broadcast realm, by Brendan Carr, the SPC
Speaker 3: and other agencies to come down on broadcasters in the
Speaker 3: press and to do so explicitly because of their coverage,
Speaker 3: whether it's their editorial decisions they make as reporters or
Speaker 3: in this case, comments about a matter of public concerns.
Speaker 3: And it's inconsistent with law, federal law for the FCC
Speaker 3: to intervene in that respect, and it violates the First Amendments.
Speaker 2: And are there other business interests at work in these
Speaker 2: cases as well?
Speaker 3: And there's another twist to this, there's another layer. And
Speaker 3: when you talked about the affiliates who do hold the licenses,
Speaker 3: the corporations that own those affiliates, one of them has
Speaker 3: a big merger application pending with the Trump administration. And
Speaker 3: guess what I really want that merger to go through.
Speaker 3: I better play ball. I better do it the easy way.
Speaker 3: So it's layers of leverage here. It's not just brending cars,
Speaker 3: you know, mouthing off about you know, easy way or
Speaker 3: hard way. It's behind the scenes. You've got people who
Speaker 3: are interested in big time corporate mergers with these affiliates,
Speaker 3: and their concern is, boy, I better not across some
Speaker 3: line if I can figure out where it is with
Speaker 3: regard to the Trump administration, or I won't get my
Speaker 3: merger and that's already happened. Paramounts is the other example there. Right,
Speaker 3: they did it the easy way, They played ball and
Speaker 3: they got their merger through. So it's it's very it's
Speaker 3: very mafia like as people have described it. Right, boy,
Speaker 3: this is a really nice restaurant of the shame if
Speaker 3: you lose, if you lost it. It's kind of like that,
Speaker 3: but even more explicit. But you're right, of course, you know,
Speaker 3: when it comes to comedy, people have been scuring presidents
Speaker 3: for you know, since we've had television and even before,
Speaker 3: and they haven't been punished for it. We are any different,
Speaker 3: darker place with regard to freedom of expression in the
Speaker 3: United States.
Speaker 2: And tell us about the repository you're keeping all these
Speaker 2: lawsuits concerning the First Amendment.
Speaker 3: It's that First Amendment watch, so they're hosting it. So
Speaker 3: what I've done is I've taken all of the executive
Speaker 3: orders that relate to freedom of expression. So I've got
Speaker 3: all of those organized on the site by subject matter,
Speaker 3: and then i have litigation with regard to the executive
Speaker 3: orders and also Trump's lawsuits against the press. So all
Speaker 3: the litigation and the pleatings and then commentary broadly speaking, right,
Speaker 3: some of its legal commentary, some of it's what I
Speaker 3: read in the press. Right, I can't capture everything, but
Speaker 3: if I see something and I have people sending the
Speaker 3: item and neches in the repository as well, and of
Speaker 3: course with regard to the Charlie Kirk murder in the
Speaker 3: fallout from that, it's that's its own avalanche of stuff.
Speaker 3: You know. The media is quite rightly focused on it,
Speaker 3: but there is a lot of commentary and you can
Speaker 3: really miss things that are going on. For example, and
Speaker 3: I'm doing this now on substack because I need another outlet,
Speaker 3: a district court just invalidated the National Endowment for the
Speaker 3: Arts process for reviewing grant applications because they were weeding
Speaker 3: them out based on whether they can they promoted gender ideology.
Speaker 3: So there's another sort of viewpoint based unconstitutional Trump administration policy.
Speaker 3: The zone is just so flooded. They are pressing First
Speaker 3: Amendment boundaries on purpose. They want to see how far
Speaker 3: they can go, and even when they lose in court,
Speaker 3: I think they just say, well, shrug. It serves its
Speaker 3: purpose anyway, because we're scaring people, we're chilling them. They're
Speaker 3: going to self censor. I think that's happening to the press.
Speaker 3: You know when I read headlines, and there are times
Speaker 3: they keep changing them and they get friendlier and friendlier
Speaker 3: to sort of right wing the almost as a way
Speaker 3: to sort of say, don't look over here. Well, they
Speaker 3: get sued anyway. The New York Times just got sued
Speaker 3: for ten billion dollars fifteen billion. I forget that ridiculous number,
Speaker 3: as did Penguin Press, because essentially they didn't report accurately
Speaker 3: how popular Trump is.
Speaker 2: Didn't a judge throw out that lawsuit?
Speaker 3: Well, he threw it out preliminarily, right, your complaint has
Speaker 3: to be succinct and state your claims, and it shouldn't
Speaker 3: be full of you know, basically all the lathering of
Speaker 3: Trump that this one was. So he gave him another chance.
Speaker 3: He said, you know, you have about a month to
Speaker 3: turn in a complaint that meets the Rule eight of
Speaker 3: the Federal Rules of Civil Procedure, which says here's what
Speaker 3: a complaint should include and nothing further. So, yeah, he
Speaker 3: threw it out, but it'll come back. But I think
Speaker 3: eventually Trump will lose if he loses every one of
Speaker 3: these cases. And again I don't think the point is
Speaker 3: to win the case. He doesn't need the money, He
Speaker 3: hasn't suffered reputational damage, but wants to be sued for
Speaker 3: fifteen billion dollars. You still have to defend yourself, and
Speaker 3: if you can bring a settlement out of The New
Speaker 3: York Times and or Penguin, all the better.
Speaker 2: A lot more papers for your repository. Tim thanks so much.
Speaker 2: That's Professor Timothy Zick of William and Mary Law School.
Speaker 2: Coming up next. Parents are suing alleging that AI chatbots
Speaker 2: are responsible for the suicides of their teenagers. This is bloomberg.
Speaker 2: In the United States, more than seventy percent of teenagers
Speaker 2: have used AI chatbots for companionship, and half used them regularly,
Speaker 2: according to a recent study from common Sense Media and
Speaker 2: last week, parents whose teenagers committed suicide after interactions with
Speaker 2: artificial intelligence chatbots testified to Congress about the dangers of
Speaker 2: the technology, and several parents have sued the companies behind
Speaker 2: chatbots over the suicides of their teenage Joining me is
Speaker 2: Colin Walkee, a cybersecurity and data privacy partner at hall Estel. Colin.
Speaker 2: The latest lawsuit was filed by the parents of a
Speaker 2: thirteen year old who committed suicide and it starts invisible
Speaker 2: Monsters entered the home of Juliana Peralta in or around
Speaker 2: August twenty twenty three, when she was only thirteen years old.
Speaker 2: Tell us about this lawsuit well.
Speaker 1: In particular, the allegations are is that over the next
Speaker 1: year or so, while the child was interacting with the
Speaker 1: AI chatbot, that it was not providing good advice in
Speaker 1: terms of mental health and was acting as a friend
Speaker 1: and actually helped assist it and kind of coerce, if
Speaker 1: you will, this child to commit suicide. And so the
Speaker 1: lawsuit asserts that, in short, the AI chatbot facilitating her
Speaker 1: suicide and the company should be held responsible for.
Speaker 2: This is not the first suit by parents connecting their
Speaker 2: teenagers suicide to chatbots. How many of these wrongful death
Speaker 2: lawsuits are there so far?
Speaker 1: So there are at least three or four that I
Speaker 1: am aware of, filed in various jurisdictions, and all of
Speaker 1: the allegations are very similar and in fact, in one
Speaker 1: particular instance, the child suggested leaving the news out on
Speaker 1: his desk so that someone would try and stop him,
Speaker 1: and the chatbot allegedly said, no, don't do that we
Speaker 1: want this room to be the first place where someone
Speaker 1: finds you. So you can see how this type of
Speaker 1: AI is certainly not helping the individual in that particular circumstance.
Speaker 1: And the thing is June is that we've known for
Speaker 1: a long time that AI chatbots are not going to
Speaker 1: tell us what we need to hear. They're going to
Speaker 1: tell us what we want to hear. And that's the
Speaker 1: most concerning part about this. That or unleashing products not
Speaker 1: just to the public grid large, but to youth and
Speaker 1: children without any true testing or guardrails being done to
Speaker 1: ensure child's safety.
Speaker 2: In the case of a California teenager, the father apparently
Speaker 2: knew that his son had made previous suicide attempts. So
Speaker 2: where does the parents' responsibility to monitor their teenagers fit
Speaker 2: in this picture?
Speaker 1: You hit upon a fantastic point, which is there is
Speaker 1: absolutely a role for parental responsibility. I think there are
Speaker 1: two problems in this particular case. The first problem that
Speaker 1: you have is technological ignorance. Most parents don't understand how
Speaker 1: their cell phone works, how their social media works, let
Speaker 1: alone how AI works. And yet at the same time,
Speaker 1: parents are allowing their children to utilize it. Just like
Speaker 1: parents themselves are utilizing it again without understanding how it works.
Speaker 1: But I think the second thing that you have to
Speaker 1: think about here is that this is perfectly synonymous with
Speaker 1: the development of social media. Right, So it's the very
Speaker 1: beginning social media didn't test necessarily what the long term
Speaker 1: consequences would be by developing algorithms that just fed us
Speaker 1: what we wanted to see over time. They could have
Speaker 1: changed that, but they knew that that would get into
Speaker 1: their profit margin and they don't want to do that. Right.
Speaker 1: It's the same thing here. We could be responsible and
Speaker 1: test these products and tweak them in such a way
Speaker 1: that hopefully they're a lot more secure and safe both
Speaker 1: for adults and children than what we have, but instead,
Speaker 1: because that would hurt profits, we've gone ahead and unleashed
Speaker 1: all of this onto the market, expecting individuals to know
Speaker 1: about the dangers, to know about the consequences. How many
Speaker 1: parents using Life three sixty knew that I could go
Speaker 1: on the internet and buy their children's geolocation data and
Speaker 1: find out where their children are at. Very few people
Speaker 1: knew that, and yet that was an exploitation. Same thing
Speaker 1: here with AI. What parents believe their AI may be
Speaker 1: saying to their children, or even particular chats that they
Speaker 1: look up may not be everything that the AI is saying.
Speaker 1: And how do you know which AI programs necessarily that
Speaker 1: child is accessing on the animal. So you're right, there
Speaker 1: is absolutely a role for reneral responsibility, but unfortunately this
Speaker 1: technology has developed so quickly that most parents are ignorant
Speaker 1: to the problems in the first place.
Speaker 2: Can you sort of summarize where the law stands on
Speaker 2: liability for AI right now?
Speaker 1: What you're seeing with regard to any type of liability
Speaker 1: in AI, whether it's copyright law, whether it's injuries individuals,
Speaker 1: tesla vehicles, those sorts of things, one of the questions
Speaker 1: is is are you the company who puts this out there,
Speaker 1: responsible for that? So, for example, in this social media world,
Speaker 1: we all know about section two thirty, and Section two
Speaker 1: thirty says that Facebook is not liable for what individuals
Speaker 1: post on their platform, So the same question might apply here.
Speaker 1: Is it the case that Session two thirty could at
Speaker 1: least in theory, begin to apply to AI and prohibit liability.
Speaker 1: At the end of the day, everybody owes a duty
Speaker 1: to other individuals to avoid harm, and so the question
Speaker 1: will ultimately come down did these companies adequately test these
Speaker 1: AI programs to determine their potential threats of harm and
Speaker 1: did they adequately warn the public about those before they
Speaker 1: were used.
Speaker 2: One of the biggest AI platforms, Open Ai says parental
Speaker 2: controls are going to be added to chat GPT within
Speaker 2: the next month. But does that count against them in
Speaker 2: a lawsuit because you know, too little, too late.
Speaker 1: No doubt a lawyer may try and get that in
Speaker 1: as evidence, and it might also be excluded as evidence
Speaker 1: of the medial measures. But we all know that we
Speaker 1: live in the twenty first century where you know, information
Speaker 1: is spread all about and I'm quite confident people are
Speaker 1: going to learn about this before there's ever a trial
Speaker 1: on it. And the point being is is that even
Speaker 1: if that particular issue was excluded, everyone knows that these
Speaker 1: types of protocols can be put in place pre deployment.
Speaker 1: It's just a choice of whether or not they want
Speaker 1: to take the time to do that. And because everybody
Speaker 1: wants their AI to be the first and latest so
Speaker 1: that everybody starts using it, no one's incentivized to actually
Speaker 1: adequately test and put in appropriate protocols. Because again, if
Speaker 1: you limit what the AI is going to provide as
Speaker 1: a response to somebody that's not going to give them
Speaker 1: what they want. Just like if I go on to
Speaker 1: you know, Facebook, and I don't like what I'm seeing,
Speaker 1: the algorithm is going to give me more of what
Speaker 1: I want to see. And so we're driving towards the
Speaker 1: world in which the incentive is towards profits and giving
Speaker 1: people what they want, not doing the right thing and
Speaker 1: giving people the correct information.
Speaker 2: What would the parents in these cases have to prove?
Speaker 1: Well, depending on the allegations, I mean you could again
Speaker 1: we're having to pigeonhole all these concepts into common laws theories.
Speaker 1: And so under the negligence theory, which is the simplest,
Speaker 1: the most straightforward theory, is that they owed a reasonable
Speaker 1: duty of care to all of their customers to ensure
Speaker 1: that their chatbot was reasonably safe. And then the question
Speaker 1: is is did the company breach that duty and if so,
Speaker 1: was the company the proximate cause? Okay, So, for example,
Speaker 1: in this particular case, we may be able to say
Speaker 1: that chat GPT said go check out the hotline, please
Speaker 1: call that. Maybe then if the proximate cause for that
Speaker 1: individual suicide could be cut off at that point in
Speaker 1: time by chat GPT and another approximate cause i e.
Speaker 1: His own volition or something that happened that day at
Speaker 1: school or any number of things could become the proximate
Speaker 1: cause and they could still avoid liability. So the planet
Speaker 1: will have to show that there is a duty, which
Speaker 1: I think is probably easy enough to prove. And then,
Speaker 1: of course the last hurdle is is is the company
Speaker 1: actually responsible for what the AI produces? Knowing that the
Speaker 1: AI is inherently problematic, who doesn't know at this stage
Speaker 1: the AI hopeens today? So there is a bit of
Speaker 1: a user beware angle to this case.
Speaker 2: What causes someone to commit suicide? There are often and
Speaker 2: a host of reasons. It's not so simple, and so
Speaker 2: I'm wondering how difficult it will be to prove that
Speaker 2: the chatbot was responsible.
Speaker 1: That's absolutely correct, but I don't think that it diminishes
Speaker 1: the company's responsibilities in the first place, right. I mean, so,
Speaker 1: for example, while I can't think of one off the
Speaker 1: top of my head, I'm confident that there were lawsuits
Speaker 1: in Spacebook, Meta Instagram, you know, as a result of
Speaker 1: self harm from children. I don't know where those ever went,
Speaker 1: but the point is is that companies are knowingly putting
Speaker 1: products onto the market that our government is too incompetent
Speaker 1: or too unwilling to regulate, and so therefore we have
Speaker 1: products in the market that are potentially dangerous and that
Speaker 1: the population is not adequately educated on. And so really
Speaker 1: the onus shouldn't be on the population who is trying
Speaker 1: to figure out what this technology does. It should be
Speaker 1: on the technologists who created it. Just like in the
Speaker 1: oil and gas industry, do you drill an oil and
Speaker 1: gas well and it leaked, it's your responsibility. Yes, it's
Speaker 1: an inherently dangerous operation, but you know what, that's your responsibility.
Speaker 1: And we need that type of regulation and that type
Speaker 1: of mindset to make sure that the public is safe
Speaker 1: when using AI chatlock.
Speaker 2: So which agency would be responsible for regulations in this
Speaker 2: area or would it take a law?
Speaker 1: Well, the law would be the best part. But because
Speaker 1: we are literally in an AI arms race with China
Speaker 1: and every other country in the world, I don't see
Speaker 1: that happening. The FTC can and does currently regulate AI
Speaker 1: under Section five of the FTC Act. In short, what
Speaker 1: that says is that companies can't put out their falls
Speaker 1: from its leading products, and so there are cases where
Speaker 1: the FTC is postured at least to be able to
Speaker 1: enforce you know, these types of issues. At the end
Speaker 1: of the day, will they probably not, especially under this
Speaker 1: ADMIN because again, there is so much incentive to allow
Speaker 1: this type of development that no one and I put
Speaker 1: that in air quotes, no one wants to see this regulated.
Speaker 1: And I think there's a safer way to do the
Speaker 1: AI development without posing the threat of harm to the community,
Speaker 1: which is simply, hey, we all stop at chat GPT
Speaker 1: four for public releases and everything else gets developed, you know,
Speaker 1: within DHARPA or behind closed doors within the company itself.
Speaker 1: We the public doesn't need access to this type of
Speaker 1: information as soon as it's ready.
Speaker 3: To be released.
Speaker 2: I think it was last month that forty four state
Speaker 2: attorneys general warned eleven companies that run AI chatboxes that
Speaker 2: they would quote answer for it if their products harm children.
Speaker 2: Has anything been done by state attorneys general?
Speaker 1: Not to my knowledge, And to that point, great, what
Speaker 1: are you going to do, because at the end of
Speaker 1: the day, you state attorneys generals have limited resources. So
Speaker 1: for example, in California, you know there are also trying
Speaker 1: to enforce data privacy laws to their consumer protection agency
Speaker 1: out there. We all know that we have limited funds,
Speaker 1: limited resources, and our ags are battling multiple fronts all
Speaker 1: at the same time, and so if they're going to
Speaker 1: go up against multi billion dollar companies like Meta or
Speaker 1: Open Ai, they're going to have a lot of long,
Speaker 1: uphill battle. And I assure you, by the time that
Speaker 1: legislation or that lawsuit were resolved, we'd have a whole
Speaker 1: new slew of AI problems on our hands, and so
Speaker 1: it'd be a lot too little, too late.
Speaker 2: You're right, it's hard to keep up with all of it.
Speaker 2: Thanks so much, Colin. That's Colin Walkee of haul Estell,
Speaker 2: and that's it for this edition of The Bloomberg Law Show.
Speaker 2: Remember you can always get the latest legal news on
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Speaker 2: weeknight at ten pm Wall Street. I'm June Grosso and
Speaker 2: you're listening to Bloomberg.
Speaker 1: Mm hmm.