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Abstract

In 1996, as the internet was emerging into more popular use among the general public, Judge Frank Easterbrook published Cyberspace and the Law of the Horse. In this essay and lecture, Judge Easterbrook warned against the rise of specialized law for general purpose technology and instead posited that many common law legal principles will be able to evolve. As this essay and lecture posit, new technologies provide may provide an opportunity to examine if existing legal principles function optimally, but we should be cautious of interventions in the name of protecting the public from new and rapidly evolving technologies.

Nearly thirty years later, we are grappling with similar questions as artificial intelligence (“AI”) gains more awareness and adoption by the general public. Some have questioned if our existing free speech frameworks and norms can adapt to the challenges of generative AI. This Article examines how most of the concerns surrounding AI and free speech simply rehash the long standing debates Judge Easterbrook discussed all those years ago. Further, this Article argues that Judge Easterbrook’s conclusions about law in the early days of the internet: these concerns can and should be resolved using existing frameworks. As such, the creation of specialized law should be limited to only those scenarios where these concerns raise truly novel questions or reveal that the existing frameworks prevent citizens from fully using AI to exercise their freedom of expression.

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