A bill passed overwhelmingly by the state legislature with little debate targets the press over the use of artificial intelligence. Supporters say it’s aimed at rogue publishers, but critics say it’s unconstitutional and poses a threat to legitimate news outlets. <\/p>\n
Government regulation of speech and the dissemination of news and opinion is prohibited by the First Amendment and numerous court cases from the Supreme Court on down.\u00a0<\/p>\n
New York lawmakers have other thoughts. \u00a0<\/p>\n
The state Senate and Assembly passed companion bills<\/a> in the waning days and hours of the recently concluded legislative session that seek to require publishers and broadcasters to disclose and label content generated with the assistance of artificial intelligence.<\/p>\n State Sen. Patricia Fahy<\/a> insists her bill is not aimed at mainstream news outlets such as daily newspapers, NPR outlets and commercial television newsrooms. Rather, she said, it targets \u201cfly-by-night\u201d digital outlets that use AI to spread disinformation or pirate and misrepresent content from legitimate news outlets.<\/p>\n Fahy contends the legislation \u201cprotects journalism in the long run,\u201d she said in an interview with Investigative Post. We think this is going to have extraordinary ramifications.\u201d<\/p>\n Others say the language of the bills is vague and represents a slippery slope that could be used by the government to undermine legitimate news organizations.<\/p>\n Steven Brill<\/a>, co-CEO of NewsGuard<\/a>, which fights abuses of artificial intelligence and disinformation on the World Wide Web, termed the legislation \u201cobviously unconstitutional\u201d and vulnerable to a legal challenge.<\/p>\n \u201cWe all agree certain content is bad, but the solution isn\u2019t government regulation.\u201d<\/p>\n The legislation, dubbed the FAIR News Act, requires outlets to disclose content \u201csubstantially composed, authored, or otherwise created through the use of generative artificial intelligence.\u201d It mandates the labeling of such content at the top of a print or digital story or the beginning of audio or video content.\u00a0<\/p>\n The legislation authorizes the state attorney general to determine what content is substantially created by AI and thus requires labeling. It calls for fines for failure to properly disclose \u2014 $1,000 for the first infraction, $5,000 for subsequent ones.\u00a0<\/p>\n Fahy said the legislation protects legitimate news outlets because it exempts copyrighted content, which she said governs the work of mainstream publishers and broadcasters. But the press release<\/a> issued by her office hailing adoption of the legislation casts a net that appears to ensnare all news media. No mention is made of reining in rogue outlets.<\/p>\n \u201cThe legislation mandates that news organizations operating in New York fully disclose to the public when they use generative AI to create news content, articles, or media,\u201d according to the press release.<\/p>\n Accompanying statements from labor leaders who support the legislation cast it in terms of job protection or directed at mainstream news outlets.<\/p>\n \u201cIf media bosses want to use artificial intelligence in news gathering and analysis, then it must be under terms that are ethical, transparent, and enforceable,\u201d said Susan DeCarava, president of the NewsGuild of New York.<\/p>\n Joseph Finnerty<\/a>, a media law attorney, said copyright of news content is a \u201ccomplicated legal question\u201d and does not provide \u201ca reliable benchmark for editors to determine when they might be a risk under this statute.\u201d<\/p>\n Brill added that illegitimate news websites can also copyright their content.<\/p>\n \u201cCopyright also protects the bad guys,\u201d he said, rendering the legislation\u2019s copyright exemption \u201charmless and meaningless.\u201d<\/p>\n Brill also expressed concern with granting the attorney general the power to determine when content is substantially composed by AI and not protected by copyright. An \u201cabusive attorney general\u201d could use it to punish legitimate news outlets, he said.<\/p>\n Finnerty noted that news outlets are working to establish AI policies that promote transparency with readers and viewers.<\/p>\n \u201cAll news organizations want to be transparent about its use,\u201d he said. \u201cThey don\u2019t want to use AI to create content, but rather use it to collect and analyze data and perform other tasks that help journalists do their jobs.\u201d<\/p>\n Diane Kennedy, president of the New York News Publishers Association<\/a>, a trade group that represents daily and weekly newspapers across the state, wrote in a memorandum of opposition<\/a> to Fahey\u2019s bill: \u201cNo newspaper would be safe from investigation under this legislation.\u201d<\/p>\n Another coalition of publishers cited legal precedents in opposing the legislation<\/a>. Another coalition, which includes the New York State Broadcasters Association, wrote that the bills if enacted would \u201csend a chill\u00a0 through every newsroom and social media platform in New York State<\/a>.\u201d<\/p>\n Brill and Finnerty said the legislation runs afoul of the First Amendment, which prohibits both suppressing and compelling speech.<\/p>\n \u201cIt\u2019s compelling news organizations to publish speech the government wants them to publish,\u201d said Finnerty, whose clients include Scripps Media, Lee Enterprises and Investigative Post.<\/p>\n Brill added the provision to label content as generated by AI is \u201cunconstitutional because it is forced speech.\u201d<\/p>\n Fahy, a Democrat who represents Albany and communities west of the capital, said she is \u201csurprised and disappointed\u201d at the criticism.\u00a0<\/p>\n \u201cWe\u2019ve had extraordinary support on this,\u201d she said.<\/p>\n Indeed, organized labor has lobbied hard for the legislation, which originally would have strengthened the hands of unions<\/a> when negotiating terms and conditions involving AI. The language was later removed from the bill. Supporters range from the state AFL-CIO and Communications Workers of America to the NewsGuild and Writers Guild of America.\u00a0<\/p>\n Finnerty said the fear of job losses due to AI is driving union support for the legislation.<\/p>\n \u201cIt\u2019s a legitimate issue,\u201d he said.\u00a0<\/p>\n But he criticized lawmakers for \u201ctrying to pander to special interests\u201d and\u00a0 \u201cgambling with constitutional rights and the survival of news organizations.<\/p>\n \u201cIt\u2019s legislation at its worst.\u201d<\/p>\n Subscribe to our free weekly newsletters<\/p>\n<\/p>\n The bills were approved 53 to 7 in the Senate<\/a> and 130 to 1 in the Assembly<\/a>, with 19 members marked as absent and excused.<\/p>\n