Of Slop and Swarms: The First Amendment's Next Test

2026-06-11 · Source: Knight First Amendment Institute · Field: Legal & Regulatory — Legal Technology (LegalTech), Regulatory Affairs & Government Relations, Intellectual Property & Patents · Depth: Expert, extended

Summary

The article "Of Slop and Swarms: The First Amendment's Next Test" examines the urgent need for a legal framework to address First Amendment protections for AI-generated content, drawing parallels with copyright law. It highlights the 2018 case of Steven Thaler, whose AI-generated image "A Recent Entrance to Paradise" was denied copyright by the U.S. Copyright Office and later by the D.C. Circuit in 2025, which ruled that authorship belongs exclusively to humans. The piece argues that generative AI, producing "slop" and enabling "agentic systems" like autonomous electioneering, challenges traditional notions of human expressive contribution. It proposes adapting the Copyright Office's two-part test—evaluating human creative contribution and output predictability—to determine if AI outputs qualify as protected speech, thereby preventing "slopigation" and preserving regulatory capacity.

Key takeaway

For legal professionals and policymakers grappling with AI regulation, you should advocate for a clear threshold test for First Amendment protection of AI-generated content. This approach, mirroring copyright law's focus on human expressive contribution and output predictability, is crucial to prevent "slopigation" and ensure democratic regulation of autonomous AI systems. Establishing this framework now will help distinguish legitimate AI-assisted human speech from mass-produced, unpredictable machine outputs, safeguarding against the erosion of regulatory authority.

Key insights

First Amendment protection for AI outputs should hinge on demonstrable human expressive contribution and output predictability.

Principles

• Speech protection historically ties to human agency.
• AI outputs are statistical recombinations, not original human expression.
• Legal accountability requires human or corporate entities.

Method

Apply a two-part test: assess human creative contribution and the predictability of AI outputs from human input. Establish presumptions for or against speech based on human oversight and output scale.

In practice

• Journalists using AI for prose refinement pass the threshold.
• Artists selecting unpredictable AI outputs gain protection for selection/arrangement.
• Autonomous AI electioneering fails the speaker threshold.

Topics

• AI Regulation
• First Amendment
• Copyright Law
• Generative AI
• Autonomous Agents
• Legal Authorship

Best for: Executive, CTO, VP of Engineering/Data, Legal Professional, Policy Maker, Consultant

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Editorial summary, takeaway, and curation by AIssential. Original article published by Knight First Amendment Institute.