Will the First Amendment right to speak and publish freely about politics and elections in America survive 2024? Or will governments use the fear of AI “deepfake” technology to shut down rude, noisy, mistaken or disfavored dissenters?

As reported previously here,  California enacted AB 2839 (Cal. Elec. Code § 20012) in 2024 to combat the publication of videos employing AI deepfake technology used to satirize and parody candidates running for public office.  AB 2839 applies broadly, however, to sweep in all “election communication,” meaning all speech concerning a “candidate for office” that is distributed through the internet. The law claims to prevent the use of deepfakes and “disinformation” meant to prevent voters from voting or to deceive voters based on fraudulent content.

AB 2839 targeted Christopher Kohls who had created fake political ads that included parodies using AI-produced mimicked voices. When the law took effect, Kohls’ lawyers filed a lawsuit asking the federal district court in California to declare AB 2839 unconstitutional as an obvious violation of the First Amendment rights of people to speak and publish about politics, issues, candidates and elections.

The court on October 2, 2024, granted Kohls’ request to issue a temporary injunction blocking the enforcement of AB 2839 (with a minor exception) until a full hearing can decide the law’s fate.

State Control of Political Speech Rejected

The State had urged AB 2839 is constitutional under the First Amendment as a restriction on knowing falsehoods that cause tangible harm. Deepfake videos like Kohls’, the State said, are akin to slander, libel, and fraudulent statements, all of which the government can forbid. The State targeted all videos having content that “is reasonably likely to falsely undermine confidence in the outcome of” elections.

In its written decision, the court rejected the State’s arguments about deepfake technology and preventing “misinformation” in election-related speech. Key points the court declared include (quoted here verbatim):

• Even if AB 2839 were only targeted at knowing falsehoods that cause tangible harm, these falsehoods as well as other false statements are precisely the types of speech protected by the First Amendment.

• [The] same principles safeguarding the people’s right to criticize government and government officials apply even in the new technological age when media may be digitally altered: civil penalties for criticisms on the government like those sanctioned by AB 2839 have no place in our system of governance.

• AB 2839 specifically targets speech within political or electoral content pertaining to candidates, electoral officials, and other election communication, making it a content-based regulation that seeks to limit public discourse.

• AB 2839 delineates acceptable and unacceptable content based on its purported truth or falsity and is an archetypal content-based regulation that our constitution considers dubious and subject to strict scrutiny.

• The First Amendment does not permit speech-restrictive measures when the state may remedy the problem by implementing or enforcing laws that do not infringe on speech.

• One of the First Amendment’s core purposes is to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.

• Supreme Court precedent illuminates that while a well-founded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment.

•  YouTube videos, Facebook posts, and X tweets are the newspaper advertisements and political cartoons of today, and the First Amendment protects an individual’s right to speak regardless of the new medium these critiques may take.

Freedom of Speech Prevails – For Now

The district court’s decision and reasoning protect the people’s right to freedom of expression of ideas, whether serious, inaccurate, comical, or derisive, especially during the crucial election seasons. Under the First Amendment, governments don’t get to shut down viewpoints by calling them “misinformation.” Instead, the First Amendment encourages as much discussion of ideas and information as possible. California’s attempt to block some speech and viewpoints by blaming AI deepfake technology is a disingenuous end-run around the First Amendment.

Another worrisome threat to freedom of speech is Minnesota’s recently-enacted law similar to AB 2839.  Minnesota Statute § 609.771 attaches criminal penalties including jail and fines for the mere dissemination of certain AI-generated political content that “influence[s] an election.” Kohls and his lawyers have filed a federal lawsuit challenging the law. The California court decision is not a controlling precedent, but it can help persuade the Minnesota court to strike down provisions that punish disfavored speech under the guise of fighting deepfakery.

One thing we can predict: Unless deepfake technology is outlawed wholesale, the collection of piecemeal laws and regulations along with the inevitable prosecutions and lawsuits aiming to fix this or that problem will grow without limit. And that means even more government monitoring and tighter government control of information and communication – thus continuously devaluing the U.S.  Constitutional right to free speech and expression.  

You may also wish to read: California: The new “deepfakes” ban violates the First Amendment! Outrage over the AI-generated imitations of Kamala Harris’s voice distracts from the issues around the state’s power grab over media. AB 2839 targets political speech, the most protected form of expression under the First Amendment. There are 7 meritorious challenges.