At an event last month broadly touching on the challenges facing American democracy, Attorney General Phil Weiser and Justice Melissa Hart provided their views on the dangers of artificial intelligence, digital speech and the recent U.S. Supreme Court decisions curtailing longstanding protections for abortion rights and affirmative action.
Weiser explained that he is most concerned about the existing flow of misinformation and disinformation being aggravated in advance of the 2024 election by the capability of AI to generate video and audio of candidates saying things they never uttered in real life.
“Which leads to the following problem for citizenship and for institutions: How do we authenticate what is true and what isn’t? And how do people make informed decisions,” he wondered. “That’s what keeps me up at night.”
Hart elaborated that Colorado’s Supreme Court has not yet adjudicated legal questions involving AI, but the technology is nonetheless infiltrating the legal profession in the form of AI-generated court filings.
“I can say as a person who for a long time resisted understanding technology and sort of made jokes about how I didn’t, I can’t do that anymore,” she said. “I have an obligation to understand and to educate myself regularly and keep up to date, both because, as the state Supreme Court, we are responsible for regulating the legal system … and there are huge numbers of legal-ethical issues that come with AI.”
Colorado Attorney General Phil Weiser speaking at the Denver Democracy Summit at the University of Denver on Oct. 26, 2023.
Weiser and Hart spoke on Oct. 26 as part of the 2023 Democracy Summit hosted by the Josef Korbel School of International Studies at the University of Denver. Other topics included the role of local media in educating the public, election integrity and a “backsliding” in democratic institutions across the world.
In a discussion about the role of the judiciary in a democracy, Weiser and Hart reacted to the free speech implications of online content being overwhelmingly posted to a handful of platforms privately owned by powerful technology companies. This term, the U.S. Supreme Court will evaluate laws in Texas and Florida that curb the ability of social media platforms to censor or ban users.
Although the laws came in response to conservatives’ allegations that social media companies “shadow ban” them, Weiser said he could endorse a law with guardrails similar to Florida’s.
“You have to disclose what are your policies for what videos you take down, for what videos you refuse to take down, and maybe even you have to give people a reason why you took their video down, or why you wouldn’t take it down,” he said. “And maybe you have to establish something that looks like an appellate process so that the original decision maker isn’t the only decision maker.”
Hart added the difficulty in policing the actions of social media companies is that, even though they own a large portion of the digital “public square,” the First Amendment’s prohibition against the infringement of speech does not constrain them.
“I have two children and the number of times that they accuse me — as a mother, not as a Supreme Court justice — of violating their First Amendment rights, I cannot keep track of,” she said to laughter. “It doesn’t apply to me.”
Hart drew attention to a recent decision of the Colorado Supreme Court, in which a majority of the justices endorsed the police use of a reverse keyword search to apprehend a group of alleged teenage arsonists — effectively locating the suspects by starting with phrases entered into Google and tracing them backward to find the users.
Although the court largely relied on the Fourth Amendment’s prohibition on unreasonable searches, the increase in personal information communicated online could complicate future evaluations of whether the government’s actions to investigate criminal activity are reasonable, Hart said.
“I bet every single person in this room would not love it if everyone could see all the things we’ve searched for in the past month. It reveals a lot about yourself,” she continued.
Colorado Supreme Court Justice Melissa Hart speaking at the Denver Democracy Summit at the University of Denver on Oct. 26, 2023.
Turning to the recent U.S. Supreme Court decision placing new constraints on the use of race-conscious college admissions, Hart called it the “culmination of many steps” aimed at ending affirmative action. However, she acknowledged she did not believe the decision in Students for Fair Admissions v. Harvard provided grounds for ending all diversity, equity and inclusivity initiatives.
“I will tip my hand and say I find that absurd. And I find that pretty clearly a violation of the First Amendment,” said Hart, who helped lead the campaign to defeat a ballot initiative aimed at ending public sector affirmative action in Colorado a decade before her appointment to the Supreme Court. “It’s trying to take that case much further.”
Weiser raised his recent advisory opinion on the subject, in which he concluded that employers may continue to rely on equity, diversity and inclusivity programming without running afoul of the Supreme Court’s directive.
He also addressed the conservative majority’s 2022 overturn of longstanding federal protections for abortion. Weiser argued that a pair of what he described as counter-majoritarian mechanisms in Congress — the U.S. Senate’s filibuster rule requiring 60 votes and the U.S. House of Representatives’ “Hastert rule” governing which matters can come to the floor — have prevented the legislative branch from responding to the court’s massive shift in legal interpretation.
“Political polarization has become a huge problem and our institutions are straight-jacketed,” Weiser said. “If you had a world where Congress could allow votes by majority rule on reproductive rights, I believe they’d be protected.”
Finally, Hart reiterated her prior public skepticism of judicial elections, which several states other than Colorado use for selecting judges. She raised the example of North Carolina, where a partisan shift in that state’s Supreme Court after 2022 cleared the way for a gerrymandered legislative map in favor of Republicans.
“It was very clearly political. That is not what judging, in my estimation, is supposed to do,” she said.
This post was originally published on this site be sure to check out more of their content.
