Legal uncertainty over whether AI outputs qualify as speech under First Amendment

According to Lawfare, a growing body of legal scholarship argues that large language model outputs are not "speech" under the First Amendment and therefore may be regulated differently. In Garcia v. Character Technologies, U.S. District Judge Anne Conway wrote she was "not prepared to hold that LLM output is speech," allowing product liability and negligence claims to proceed in a wrongful-death case involving an AI character. The unresolved question is who bears the burden of proving whether content was generated by humans or machines if AI outputs are not classified as speech.