This chapter challenges the notion that generative AI (GenAI) outputs qualify for First Amendment protection as “speech.” It argues that under both speech certainty and human-centric legal frameworks, GenAI outputs – being probabilistic, statistically driven, and devoid of human understanding, sentience, or intent – should be legally categorized as nonexpressive conduct or utilitarian data processing, not intentional communication.

The chapter dismantles the common counterargument that a user has a constitutional “right to receive” an AI’s output, asserting that if no speech is created by the speaker (the AI model), there is no speech to receive. This classification determines the government’s regulatory authority. If AI outputs are deemed speech, regulations face the nearly insurmountable barrier of “strict scrutiny.” If they are nonexpressive conduct, however, the government retains the power to regulate GenAI for safety. The chapter warns that extending constitutional free speech protections to nonhuman, nonintentional algorithms would jeopardize product liability, consumer protections, and democratic self-governance.