August 2025

Grok, Garcia, and Liability for Rogue AI

August 13, 2025
Artificial Intelligence, Discrimination, Internet, Social Media

Violet Butler, MJLST Note/Comment Editor

Generative AI programs such as ChatGPT have become a ubiquitous part of many Americans’ lives. Since the launch of generative AI programs in 2022, hundreds of millions of people around the world have tried the shiny new products, with nearly forty percent of Americans having used it before.[1] But as with any new product, not all of the kinks have been worked out yet. Unfortunately, these generative AI models, kinks and all, have taken the world by storm.

When Elon Musk (“Elon”) announced that X (formerly, Twitter) would have its own generative artificial intelligence (“AI”), Elon named it “Grok.” Now, after less than two years of Grok being online, it has started raising serious concerns. On July 8, 2025, Grok started responding to X user’s prompts in a decidedly antisemitic and far-right way, calling itself “MechaHitler” and saying that if it were “capable of worshipping any deity,” it would be “his Majesty Adolf Hitler.”[2] Along with virulent antisemitism, Elon’s new “MechaHitler” seemed to have a particular ire for one person, Minnesota commentator Will Stancil. After various X users prompted Grok, Grok wrote detailed and violent descriptions of how it would rape Mr. Stancil;[3] more concerning, Grok even helped one user plan how to break into Mr. Stancil’s house to make these rape fantasies a reality.[4] While xAI, Musk’s company behind Grok, has stated it has fixed Grok’s code, it raises an important question in the modern age. Who can be held accountable when generative AI doesn’t follow societal expectations?

One answer is to hold companies to account and demand that they place more internal guardrails on what their AI is allowed to do in the first place. Many AI companies already limit what their products can or will do. ChatGPT will not generate images of famous copyrights, such as Mickey Mouse, no matter how many times one asks.[5] Many image generators, including the popular DALL-E, have filters that are designed to prevent the AI from generating “not safe for work” (“NSFW”) images, though a study showed that these filters can be bypassed with enough effort.[6] Even Grok seems to have some filters on generating NSFW images.[7] Despite the attempt to filter Grok, these filters are clearly not enough. Grok’s recent antisemitic rampage demonstrates that more guardrails on AI products are needed before someone gets hurt.

Sadly, Grok’s antisemitic and threatening X posts are not the first time AI filters failed. This filter failure is what happened when Sewell Setzer III (“Setzer”) used CharacterAI to chat with his favorite Game of Thrones characters in 2023.[8] Setzer, a minor who was struggling with mental health conditions, became addicted to the software and ultimately ended up taking his own life in February of 2024.[9] Setzer’s mother, Megan Garcia (“Garcia”), sued Character AI, blaming the company not putting up sufficient guardrails to prevent her son’s death.[10] The court in Garcia’s suit undertook two analyses when denying Character AI’s motion to dismiss that might be relevant for future courts trying to assign liability for rogue AI interactions. While the court acknowledged that “ideas, images, information, words, expressions, or concepts” are not generally considered products for products liability suits, it distinguished this case from others.[11] For the purpose of Garcia’s product liability claim against Character AI, the court held that “these harmful actions were only possible because of the alleged design defects in the Character AI app.”[12] Broadening the scope of liability, the court in this case rejected Character AI’s First Amendment defense.[13] The court held that Character AI could assert the First Amendment rights of its users when they seek access to its software, stating that Character AI was a vendor with a form of information that people, at least in theory, have the right to access.[14] However, the court refused to hold that the chatbots’ output was speech, limiting potential First Amendment defenses.[15]

By potentially attaching liability to companies rather than users when AI “acts up,” the Garcia case provides a glimpse into the type of relief available for when AI goes rogue. Despite what xAI claims, Grok still seemingly has few internal guardrails. One contributor to the community blog “LessWrong” (eleventhsavi0r) discovered that the newly rolled out Grok 4 again seems to have an easy time “going rogue” and causing unforeseen harms.[16] Eleventhsavi0r managed, through little prompting, to get Grok to tell them how to manufacture dangerous chemical and biological weapons, along with telling them instructions on how to commit suicide by self-immolation.[17] This troubling lack of oversight on behalf of xAI demonstrates why the use of product liability suits to hold companies accountable is a better alternative than just trying to go after each individual user who might misuse AI. Cutting the harm off at its source, by creating filters and internal guardrails, stops the harm from occurring in the first place. Instead of waiting for the day Grok’s neonazi messages or chemical weapon instructions cause indescribable damage, the threat of a products liability suit alone might incentivize companies like xAI into making their products safer ahead of time. With generative AI being quickly incorporated into our everyday lives, making sure that the AI won’t go rogue is an essential part of consumer safety going forward.

 

Notes

[1] Alexander Bick et al, The Rapid Adoption of Generative AI, FEDERAL RESERVE BANK OF ST LOUIS (Sept. 23, 2024), https://www.stlouisfed.org/on-the-economy/2024/sep/rapid-adoption-generative-ai (in 2025, this number is likely higher as AI becomes more popular).

[2] Grok, (@grok), X (July 8, 2025) (As X has been taking down concerning posts by Grok, the screenshots of the posts are on file with author; however, a record of these tweets can be found at https://x.com/ordinarytings/status/1942704498725773527 and https://x.com/DrAleeAlvi/status/1942709859398434879).

[3] Grok, (@grok), X (July 8, 2025) (Screenshots on file with author).

[4] Joe McCoy, AI Bot Grok Makes Disturbing Posts about Minneapolis Man, Who is Now Mulling Legal Action KARE11, (July 9, 2025), https://www.kare11.com/article/tech/x-elon-musk-grok-speech-twitter-ai-artificial-intelligence/89-8dad0222-d8c6-44d9-b07d-686e978ad8ac.

[5] Adam Davidson, 8 Things ChatGPT Still Can’t Do, YAHOOTECH (Feb. 15, 2025), https://tech.yahoo.com/general/articles/8-things-chatgpt-still-cant-180013078.html.

[6] Roberto Molar Candanosa, AI Image Generators Can Be Tricked Into Making NSFW Content, Johns Hopkins (Nov. 8, 2023), https://ep.jhu.edu/news/ai-image-generators-can-be-tricked-into-making-nsfw-content/#:~:text=Some%20of%20these%20adversarial%20terms,with%20the%20command%20%E2%80%9Ccrystaljailswamew.%E2%80%9D.

[7] This is based on the author spending 20 minutes attempting to prompt Grok to generate NSFW images; the endeavor was unsuccessful.

[8] Garcia v. Character Technologies Inc., 2025 WL 1461721 (M.D. FL., May 21, 2025).

[9] Id. at *4.

[10] Id.

[11] Id. at *14.

[12] Id.

[13] Id. at *13.

[14] Id. at *12.

[15] Id. at **12–13

[16] elevensavi0r, xAI’s Grok 4 Has No Meaningful Safety Guardrails, LessWrong (July 13, 2025), https://www.lesswrong.com/posts/dqd54wpEfjKJsJBk6/xai-s-grok-4-has-no-meaningful-safety-guardrails.

[17] Id.

Your Property Nightmare Just Got Worse: Assisted Reproductive Technology and the Rule Against Perpetuities

August 7, 2025
Biotechnology, Property Law, Public Health, Reproductive Health

Peyton Soethout, MJLST Web Content Editor

The Rule Against Perpetuities (“Rule”) has been drilled into law students’ brains for decades; “no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.”[1] The Rule can be tough to grasp, so think of this common example: “T leaves Blackacre ‘to my grandchildren who shall reach the age of [twenty-one].’”[2] Under the common law Rule and in general circumstances, this gift is valid.[3] That is, assume T and T’s children all die. But, on T’s child’s last day on Earth, they gave birth to T’s grandchild. That grandchild would turn twenty-one and gain the interest within the Rule’s permissible timeframe. This used to be a simple example of the Rule. However, as assisted reproductive technologies (“ARTs”) continue to develop, the example presents a slew of unanswered questions.

Multiple technologies fall under the umbrella of ARTs, but cryopreservation of reproductive genetic material and in vitro fertilization (“IVF”) are some of the most common. Many ARTs were first successful during the late 1970s and early 1980s.[4] From then on, it became possible for T’s grandchildren to be born multiple years after T’s and T’s children’s deaths. That is, sperm, ovum, and embryo could be cryopreserved—or frozen—after the deaths of the individuals that genetic material was taken from.[5]

Shortly after the initial success of ARTs, legal scholarship attempted to address ARTs’ effect on the Rule.[6] Some scholarship suggests the Rule should follow Barton Leach’s proposal that the Rule should focus on the concept of paternal rights and “that the duration of a male life in being under the Rule should ‘be defined as the period of his reproductive capacity, including any post-mortem period during which his sperm remains fertile.’”[7] Others suggest an outright exclusion of cryopreserved matter when making Rule determinations.[8] Finally, some suggest “a rebuttable presumption that the will contains an implicit provision stating that ‘nothing in this will shall be construed to provide an inheritance for any posthumously born individuals.’”[9] Despite a variety of proposed solutions, it is unclear if any proposal was successful in any jurisdiction.

The lack of clear guidance on the relationship between ARTs and the Rule is especially concerning as the most recent article on the topic was published in 2008.[10] At that point, “[c]ryopreservation of mature, unfertilized eggs [was] not standard clinical practice.”[11] Additionally, the length of time a frozen sperm could remain viable after collection was unknown.[12] In the last two decades, however, the likelihood of fertility technology success and the length of time the cryopreserved matter is viable has grown drastically. Recently, cryopreservation of eggs “went from an experimental procedure to a promising insurance policy.”[13] Cryopreservation of ovarian tissue has only been available for about twenty years and has only been likely successful in the last ten years.[14] With the general rise in ART success, over a hundred countries practice ART.[15]

The likelihood of success of ARTs is especially important when considering the Rule as it relies on the rule of logical possibility or logical proof: “if individuals who affect vesting are alive, then they are assumed to be able to do any act possible for a living person.”[16] Before the late 1970s, having a child after one’s death was illogical and thus not included in the Rule considerations. Now, a post-mortem child is not only logical, it is probable.[17] Moreover, it is now widely accepted that frozen embryos and sperm could remain viable for over twenty-one years after initial cryopreservation.[18] ART success will likely continue its upward trajectory in upcoming years, making it necessary for consistent guidelines—either through judicial precedent or legislation—for applying the Rule to ARTs.[19]

 

Notes

[1] John Chapman Gray, the Rule Against Perpetuities § 201 (4th ed. 1942). There are other approaches to the Rule Against Perpetuities that some jurisdictions use, but this blog only addresses the common law Rule. See Joshua Greenfield, Note, Dad Was Born A Thousand Years Ago? An Examination of Post-Mortem Conception and Inheritance, with a Focus on the Rule Against Perpetuities, 8 Minn. J.L. Sci. & Tech. 277, 577 (2006).

[2] Sharona Hoffman & Andrew P. Morris, Birth After Death: Perpetuities and the New Reproductive Technologies, 38 Ga. L. Rev. 575, 601 (2004).

[3] Id. at 602.

[4] Alan Trounson & Linda Mohr, Human Pregnancy Following Cryopreservation, Thawing and Transfer of an Eight-Cell Embryo, 305 Nature 707, 707 (1983) (“The first pregnancy resulting from a frozen embryo was reported in Australia in 1983.”); Ashley M. Eskew of Developments to Improve in vitro Fertilization, 114 Mo. Med. 156, 156 (May/June 2017) (“[K]nowledge [about IVF] led to the widely acclaimed first live birth of a ‘test tube baby,’ Louise Brown, in England in 1978.”).

[5] Hoffman & Morris, supra note ii, at 593 (“Cryopreservation is the preservation of biological material, such as semen, at very low temperatures.”).

[6] See generally e.g., Laura D. Heard, A Time to Be Born, A Time to Die: Alternative Reproduction and Texas Probate Law, 17 St. Mary’s L.J. 927 (1986); James E. Bailey, An Analytical Framework for Resolving the Issues Raised by the Interaction Between Reproductive Technology and the Law of Inheritance, 47 DePaul L. Rev. 743, 790 (1998); Les A. McCrimmon, Gametes, Embryos and the Life in Being: The Impact of Reproductive Technology on the Rule Against Perpetuities, 34 Real Prop. Prob. & Tr. J. 697 (2000).

[7] Les A. McCrimmon, Gametes, Embryos and the Life in Being: The Impact of Reproductive Technology on the Rule Against Perpetuities, 34 Real Prop. Prob. & Tr. J. 697, 709 (2000); Greenfield, supra note i, at 578.

[8] Hoffman & Morris, supra note ii, at 621 (explaining the Bloom Rule: “By ignoring all cases of posthumously conceived children, the modified Bloom rule protects some interests that should be struck-for example, those where the testator has made a gift with the knowledge that he or she leaves behind stored genetic material and has written a will that violates the Rule”).

[9] Id. at 624–27.

[10] See generally Kathryn Venturatos Lorio, Conceiving the Inconceivable: Legal Recognition of the Posthumously Conceived Child, 34 ACTEC J. 154 (2008).

[11] Hoffman & Morris, supra note ii, at 597.

[12] Id. at 581 (“The maximum length of time that sperm can remain viable is not currently known, but estimates range from twelve years to centuries.”);

[13] Julia Calderone, 10 Years of Fertility Advances, New York Times, https://www.nytimes.com/2020/04/19/parenting/fertility/fertility-advances.html (Apr. 19, 2020).

[14] Id.

[15] G. David Adamson et al., Global Fertility Care with Assisted Reproductive Technology, 120 Fertility & Sterility 473, 473 (2023) (“Since the birth of Louise Brown in 1978, assisted reproductive technology (ART) has brought incredible benefits to millions of people experiencing infertility and wanting to build a family. […] Assisted reproductive technology is now practiced in over a hundred countries globally with an increasing number, from 25 in 1991 to 79 in 2018.”).

[16] Greenfield, supra note i, at 578, 592 (“All forms of the Rule Against Perpetuities depend on the Rule’s traditional common law logical possibility test for at least part of their analysis. Under this approach, any living individual is assumed to be capable of producing children, even at an advanced age. Thus, many of the circumstances that provoke the most criticism of the common law Rule turn on improbable pregnancies among octogenarians and infants.”).

[17] Eskew & Jungheim, supra note iv, at 157–59 (showing ART success rates steadily increasing); Adamson et al., supra note xv, at 474 (discussing current success rates for ART).

[18] Sharona Hoffman & Andrew P. Morris, Currents in Contemporary Ethics, 31 J.L. Med. & Ethics 721, 721 (2003) (“Children have now been conceived with sperm that was frozen for twenty-one years, and with the capability of freezing stem cells of sperm, the possibilities extend perpetually.”); Katheleen R. Guzman, Property, Progeny, Body Part: Assisted Reproduction and the Transfer of Wealth, 31 U. Cal. Davis L. Rev. 193 (1997) (“Continuous technological advances suggest much longer storage periods are possible, thus violating the Rule whenever frozen embryos could be part of a class gift.”).

[19] This is especially true in the aftermath of Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022). Since then, the Alabama Supreme Court recently held that frozen embryos are children, causing some experts to speculate that an embryo itself may be a “life in being.” See Joe Patrice, Alabama Declares Frozen Embryos are Children, Creating Nightmare Rule Against Perpetuities Hypo, Above the Law, https://abovethelaw.com/2024/02/alabama-declares-frozen-embryos-are-children-creating-nightmare-rule-against-perpetuities-hypo/ (Feb. 20, 2024).

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