Gavin Newsom, California’s Democratic governor, signed a bill into law banning AI-generated deepfake content. It lasted two whole weeks. US District Judge John A. Mendez, a Bush appointee in California’s eastern district, agreed that AI and deepfakes pose significant risks – but he ruled that the new law likely violates the First Amendment, granting a preliminary injunction against it and blocking its enforcement. Is this a free speech win for the Golden State, or does it grant license for bad actors to use disinformation to meddle in the upcoming election? Just how fine is that line?
Deepfake Disinformation or Political Parody?
Plaintiff Christopher Kohls – known online as “Mr. Reagan” – creates digital content about political figures. As detailed in the introduction to Judge Mendez’s order, that includes “demonstrably false information that include sounds or visuals that are significantly edited or digitally generated using artificial intelligence (‘AI’).” For example, Kohls released a video on July 26 that showed the vice president saying in a campaign ad that she is the “ultimate diversity hire,” and that she had spent “four years under the tutelage of the ultimate deep state puppet.”
Shortly thereafter, Newsom called for a ban on such content. The state’s legislature happily obliged. Assembly Bill No. 2839 passed the California Assembly 63-8 and the Senate 32-6 before being signed into law by the governor on September 17, to take effect immediately.
Under the new legislation, content creators like Mr. Kohls could be sued for publishing such deceptive content over a period spanning from 120 days before an election to 60 days after – and the list of potential plaintiffs is long. Not only could the person targeted by the deepfake sue, but so could anyone else – in or out of the government – who watched the video, with or without any real damages being incurred.
But was Mr. Kohls’ video deepfake disinformation or political parody?
Well, for starters, it was clearly labeled as parody – the word was even in the title: “Kamala Harris Campaign Ad PARODY.” Even had it not been clearly labeled as such, what reasonable person would believe for a second – especially knowing technology exists that can alter a person’s image and voice – that a candidate for political office at any level would release a campaign ad in which they admit to being corrupt, derelict in their duties, or simply unqualified for said duties?
Likely Unconstitutional on Multiple Fronts
A spokesperson for Newsom’s office warned that deepfakes “threaten the integrity of our elections, and these new laws protect our democracy while preserving free speech – in a manner no more stringent than in other states, including deep-red Alabama.”
But Judge Mendez disagrees.
“AB 2839 does not pass constitutional scrutiny because the law does not use the least restrictive means available for advancing the State’s interest here,” the judge’s ruling reads. “As Plaintiffs persuasively argue, counter speech is a less restrictive alternative to prohibiting videos such as those posted by Plaintiff, no matter how offensive or inappropriate someone may find them.”
Existing legal precedent requires a law that would stifle political speech rely on the least restrictive method possible. Judge Mendez mentions the counter-speech doctrine, which holds that the proper response to negative speech is not to block it but to counter it with positive speech. The theory here is that audiences and recipients of the speech can weigh the value of competing ideas and, ideally, opt for the positive narrative.
As such, the judge granted the preliminary injunction because Mr. Kohls seemed likely to win his case that the law is unconstitutional “both facially and as applied.” A “facial” challenge is a legal claim that a law, rule, or policy is unconstitutional, no matter the circumstance; it’s never going to not violate some protected right, and therefore it’s void. “As applied” simply means “as it’s applied in this specific case,” but not necessarily in all circumstances. Judge Mendez believes AB 2839 is likely to be ruled a violation of both the First and 14th Amendments in both ways.
As explained in the conclusion of the order, multiple courts – including the US Supreme Court – have repeatedly held that the loss of First Amendment freedoms for any length of time “unquestionably constitutes irreparable injury.” “Thus,” Judge Mendez concludes, “the Court finds that Plaintiff Kohls would experience irreparable harm because his speech would be unconstitutionally chilled if the motion for preliminary injunction were not granted.”
But this story is far from over. For starters, this ruling doesn’t quite officially declare the law unconstitutional – it simply argues that it would likely be found so upon further review. What’s granted is a preliminary injunction that blocks the law from being enforced until the court issues a final ruling. Now, given Judge Mendez’s arguments, it seems highly unlikely the state will win – but then there’s the appeals process. From here, it would go to the Ninth Circuit Court of Appeals, which has long held the reputation of the most liberal circuit in the country. Ultimately, the issue may be decided by the US Supreme Court. However, at least for now, Mr. Kohls remains free to satirize to his heart’s desire.
Dig Deeper into the Themes Discussed in this Article!
Liberty Vault: Federalist Papers No. 10
Liberty Vault: United States v. Alvarez
Liberty Vault: 303 Creative L.L.C. v. Elenis
