The Lawfare Podcast: Scaling Laws – Eugene Volokh on Libel and AI

Release Date: July 18, 2025
Episode: Scaling Laws: Eugene Volokh on Libel and AI
Host: The Lawfare Institute

Introduction

In this episode of The Lawfare Podcast, part of the new series Scaling Laws, host Alan Rosenstein and AI Innovation and Law Fellow Kevin Frazier engage in an in-depth conversation with Eugene Volokh, a senior fellow at the Hoover Institution and a seasoned law professor at UCLA. The discussion delves into the intricate intersection of libel law and the burgeoning field of artificial intelligence (AI), exploring how traditional legal frameworks are grappling with the challenges posed by AI-generated content.

Understanding Libel in the Modern Context

Eugene Volokh begins by elucidating the fundamentals of libel, emphasizing its definition and legal requirements. He explains:

"Libel means false statements of fact about a person or a corporation for profit or nonprofit that damages that entity’s or person's reputation." (06:05)

Volokh outlines the essential elements required to establish a libel case, such as the necessity to prove false statements, publication, damage to reputation, and the mental state of the defendant (e.g., negligence or actual malice for public figures).

Libel in the Age of AI

Transitioning to the AI landscape, Volokh addresses the complexities AI introduces to libel law. He highlights scenarios where AI-generated content might inadvertently produce defamatory statements, raising questions about liability and responsibility.

"If someone uses generative AI to produce a criminal rap sheet for an individual, and the AI incorrectly attributes crimes to that person, determining liability becomes a legal quagmire." (26:19)

Key issues include the reliability of AI outputs, the effectiveness of disclaimers, and the challenge of ascribing a "mental state" or intent to AI systems that generate potentially defamatory content.

Section 230: Shielding Platforms or Obstructing Justice?

A significant portion of the discussion centers on Section 230 of Title 47 of the U.S. Code, which provides immunity to online platforms from being liable for content posted by their users. Volokh critiques the applicability of Section 230 to AI-generated content, arguing that:

"Section 230 protects platforms from liability for user-generated content, but generative AI companies like OpenAI produce content themselves, which should not fall under this immunity." (27:31)

He contends that AI platforms are not mere conduits but active creators of content, thereby necessitating a reevaluation of their legal protections. Volokh dismisses arguments favoring the extension of Section 230 to AI, emphasizing the potential for significant reputational harm and the need for accountability.

Legal Implications and Emerging Cases

Volokh references ongoing and potential legal battles that could set precedents for AI-related libel cases. He mentions specific instances where falsifiable AI outputs have led to lawsuits, such as the case where an AI incorrectly attributed serious felonies to an individual named Jeffrey Battle.

"In one case, an AI generated false information linking two individuals with the same name to severe criminal activities, prompting a lawsuit against Microsoft." (35:00)

These cases underscore the urgent need for the legal system to adapt to the nuances of AI-generated content and establish clear guidelines for liability and accountability.

Future Directions: Adapting Legal Frameworks to AI

Looking ahead, Volokh discusses the potential need for legislative reforms to address the unique challenges posed by AI. He suggests that instead of relying solely on existing tort laws, there may be a necessity for new statutes tailored to AI technologies to ensure both innovation and protection against libel.

"Legislative judgments will be crucial in striking a balance between fostering AI innovation and safeguarding individuals' reputational rights." (53:28)

He envisions mechanisms such as mandatory verification processes for AI-generated quotes or statements to prevent the dissemination of false information.

Notable Quotes

• "Libel means false statements of fact about a person or a corporation for profit or nonprofit that damages that entity’s or person's reputation." – Eugene Volokh (06:05)

• "Section 230 protects platforms from liability for user-generated content, but generative AI companies like OpenAI produce content themselves, which should not fall under this immunity." – Eugene Volokh (27:31)

• "If someone uses generative AI to produce a criminal rap sheet for an individual, and the AI incorrectly attributes crimes to that person, determining liability becomes a legal quagmire." – Eugene Volokh (26:19)

• "Legislative judgments will be crucial in striking a balance between fostering AI innovation and safeguarding individuals' reputational rights." – Eugene Volokh (53:28)

Conclusion

The episode provides a comprehensive exploration of how libel law intersects with AI technologies, highlighting the gaps and challenges that current legal frameworks face. Eugene Volokh offers insightful analysis and forward-thinking perspectives on potential legal reforms, emphasizing the necessity for the law to evolve alongside technological advancements. This discussion is invaluable for legal professionals, policymakers, and anyone interested in the implications of AI on free speech and reputational rights.

For more episodes and discussions at the intersection of national security, law, and policy, visit www.lawfareblog.com.