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Free Speech

Kamala Harris, Satire, and Where the Wild Things Are

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[1.] California recently enacted a new law banning election-related "materially deceptive content" 120 days before and 60 days after an election. "Materially deceptive content" is defined as

audio or visual media that is intentionally digitally created or [significantly] modified, which includes, but is not limited to, deepfakes, such that the content would falsely appear to a reasonable person to be an authentic record of the content depicted in the media.

One question is: How will this affect satirical videos mocking candidates, such as this one:

California Gov. Gavin Newsom says the bill will make the video illegal:

A newly filed lawsuit by the creator of the ad, Kohls v. Bonta, seeks a preliminary injunction against enforcing the law with respect to the ad. Who is likely to win? More broadly, how does the law treat satire?

[2.] It turns out that the legal system has had to deal with this question often. A defendant in a libel case might argue that his speech wasn't a factual accusation but satire. A defendant who is prosecuted for impersonation might argue that his speech was jocular and not serious. A defendant who is prosecuted for making a threat might likewise argue that his speech was a joke.

As a general matter, the law deals with such claims by concluding that, if a reasonable person would understand the statement as a joke, then the elements of the offense aren't present: the statement isn't a false factual assertion (for libel or impersonation purposes) and isn't a true threat (for threat purposes). There doesn't need to be some special satire defense set forth in the statute or the common law rule; rather, the requirement that a reasonable person perceive the statement as a factual assertion is an inherent part of what makes the statement punishable in the first place. The California materially deceptive content statute reflects that, when it says:

"Materially deceptive content" means audio or visual media that is intentionally digitally created or modified, which includes, but is not limited to, deepfakes, such that the content would falsely appear to a reasonable person to be an authentic record of the content depicted in the media.

If a reasonable person would see the media as a satirical alteration, rather than as straight-up reporting, then it's not "materially deceptive." And though the California statute says,

this section does not apply to an advertisement or other election communication containing materially deceptive content that constitutes satire or parody if the communication includes a disclosure stating "This has been manipulated for purposes of satire or parody" [in a size that is easily readable by the average viewer and no smaller than the largest font size of other text appearing in the visual media]

this on its face only applies to material that is materially deceptive in the first place. If a reasonable person would perceive the statement as satire, then the disclosure isn't required, because there is no "materially deceptive content" in the first place.

My favorite illustration of this comes in New Times, Inc. v. Isaacks (Tex. 2004). Before the article in that case had been written, there was a real arrest (and 5-day juvenile detention) of a 13-year-old for writing—in response to a teacher's assignment to write a "scary story" for Halloween—"a tale that described shooting a teacher and two classmates," a tale for which he "received a grade of 100, plus extra credit for reading it aloud in class."  The Dallas Observer, an alt-weekly, wrote a follow-up article, which used the names of the same judge and prosecutor involved in the 13-year-old's case:

Entitled "Stop the madness," the fictitious article described the arrest and detention of "diminutive 6 year-old" Cindy Bradley, who was purportedly jailed for writing a book report about "cannibalism, fanaticism, and disorderly conduct" in Maurice Sendak's classic children's book, Where the Wild Things Are. Adjacent to the article was a picture of a smiling child holding a stuffed animal and bearing the caption, "Do they make handcuffs this small? Be afraid of this little girl." The article states that Bradley was arrested "without incident during 'story time'" at Ponder Elementary School and attributes fabricated words and conduct to Judge Darlene Whitten, District Attorney Bruce Issacks, and others.

Other false quotes and bogus factual assertions were strewn throughout the piece. Judge Whitten was said to have ordered Bradley detained for ten days at the Denton County Juvenile Detention Center while prosecutors contemplated whether to file charges. Whitten purportedly said: "Any implication of violence in a school situation, even if it was just contained in a first grader's book report, is reason enough for panic and overreaction…. It's time for you to grow up, young lady, and it's time for us to stop treating kids like children." Cindy was placed in ankle shackles "after [authorities] reviewed her disciplinary record, which included reprimands for spraying a boy with pineapple juice and sitting on her feet."

The article noted that Isaacks had not yet decided whether to prosecute Cindy and quoted him as saying, "We've considered having her certified to stand trial as an adult, but even in Texas there are some limits." Yet another fictional quote was attributed to Dr. Bruce Welch, the Ponder ISD Superintendent: "Frankly, these kids scare the crap out of me." The article claimed that school representatives would soon join several local faith-based organizations, including "the God Fearing Opponents of Freedom (GOOF)," in asking publishers to review content guidelines for children's books.

In describing Sendak's 1964 Caldecott Medal winning book, the article offered the only true quote in the entire piece:

The most controversial aspect of the book is contained in an early exchange between Max and his mother. It reads: "His mother called him 'WILD THING!' and Max said 'I'LL EAT YOU UP!' so he was sent to bed without eating anything."

The article asserts that although he had not read the book, then-governor George W. Bush purportedly "was appalled that such material could find its way into the hands of a Texas schoolchild. This book clearly has deviant, violent sexual overtones. Parents must understand that zero tolerance means just that. We won't tolerate anything." The article concludes with Cindy "scoff[ing] at the suggestion that Where the Wild Things Are can corrupt young minds. 'Like, I'm sure,' she said. 'It's bad enough people think like Salinger and Twain are dangerous, but Sendak? Give me a break, for Christ's sake. Excuse my French.'"

The Texas Supreme Court unanimously held that the article wasn't libelous, because a reasonable person wouldn't perceive it as making factual assertions about the judge and the prosecutor:

"We have long held that an allegedly defamatory publication should be construed as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it." …

"As the relevant cases show, the hypothetical reasonable person—the mythic Cheshire cat who darts about the pages of the tort law—is no dullard. He or she does not represent the lowest common denominator, but reasonable intelligence and learning. He or she can tell the difference between satire and sincerity."

The person of "ordinary intelligence" … is a prototype of a person who exercises care and prudence, but not omniscience, when evaluating allegedly defamatory communications.

The appropriate inquiry is objective, not subjective. Thus, the question is not whether some actual readers were mislead, as they inevitably will be, but whether the hypothetical reasonable reader could be….  "The fact that real party furnished declarations of a few people who stated that they did not recognize the letter as a joke does not raise a question of fact as to the view of the average reader.  The question is not one that is to be answered by taking a poll of readers but is to be answered by considering the entire context in which the offending material appears." …

"Dry irony … creates a greater risk of being misunderstood as an assertion of fact than slapstick, but nonetheless it is entitled to protection.  We should hardly encourage the development of libel law that rewards low humor." … Thus, we focus on a single objective inquiry: whether the satire can be reasonably understood as stating actual fact.

This is not the same as asking whether all readers actually understood the satire, or "got the joke."  Intelligent, well-read people act unreasonably from time to time, whereas the hypothetical reasonable reader, for purposes of defamation law, does not.  In a case of parody or satire, courts must analyze the words at issue with detachment and dispassion, considering them in context and as a whole, as the reasonable reader would consider them.

[3.] Under this standard, the Harris video would be viewed as a satire, which is to say that "the content would [not] falsely appear to a reasonable person to be an authentic record of the content depicted in the media." The video narration begins with,

I, Kamala Harris, am your Democrat candidate for president because Joe Biden finally exposed his senility at the debate. Thanks Joe. I was selected because I am the ultimate diversity hire. I'm both a woman and a person of color. So if you criticize anything I say, you're both sexist and racist. I may not know the first thing about running the country, but remember, that's a good thing if you're a deep state puppet. I had four years under the tutelage of the ultimate deep state puppet; a wonderful mentor, Joe Biden. Joe taught me rule number one: carefully hide your total incompetence.

Any person "who exercises care and prudence"—and, I expect, virtually any person of "reasonable intelligence and learning" who "can tell the difference between satire and sincerity" can recognize that the words are so anti-Harris that they can't really be Harris's. Nor does the material become punishable whenever "some actual readers were mislead, as they inevitably will be"; the New Times court notes, for instance,

For example, earlier this year, the Beijing Evening News, in a story written by Huang Ke, reported that Congress was threatening to bolt Washington, D.C. unless it got a new, modern Capitol building, complete with retractable roof. Unfortunately, Ke's source for this information was The Onion, the satirical publication that bills itself as "America's Finest News Source."  The Evening News later apologized but blamed The Onion, writing that "[s]ome small American newspapers frequently fabricate offbeat news to trick people into noticing them with the aim of making money."

According to Carol Kolb, Onion editor, "People every single day think The Onion stories are real."  One piece, called "Al-Qaida Allegedly Engaging in Telemarketing," prompted the Branch County, Michigan sheriff's department to issue an urgent press release warning of the purported practice.  In a similar vein, an article entitled "Chinese Woman Gives Birth to Septuplets: Has One Week to Choose" provoked prayer vigils on behalf of the six babies who would be rejected.  Additionally, Deborah Norville reported on MSNBC that more than half of all exercise done in the United States happens in TV infomercials for workout machines, a "statistic" obtained from an Onion article.

That some people, even some professionals, are duped isn't enough to make the speech punishable under the reasonable person test.

[4.] Yet of course the difficulty is that different judges can have different judgments about how a reasonable person would react. In New Times, after all, the trial judge plus three appellate judges ruled against the newspaper, before the Texas Supreme Court unanimously reversed them. Here's an excerpt of the appellate panel's decision:

[Plaintiffs] Isaacks and Whitten respond that the author's use of quotes throughout the entire article, along with the use of the photograph of the alleged offending child and the fact that the article was in the "News" section with no disclaimer, are indicia from which a reasonable reader would conclude that the article purported to assert statements of actual fact.

Isaacks and Whitten also point to the article's use of fictionalized quotations attributed to relevant individuals who would likely make some kind of statement in this situation as significantly adding to the realism of the article. The Supreme Court has recognized that "quotations may be a devastating instrument for conveying false meaning."  Here, quotes are attributed to the bailiff, the presiding judge, the district attorney, former Governor George W. Bush, and a representative of the ACLU.

A reasonable reader could conclude that these were the appropriate people to comment on this issue and that their quoted comments were real. Moreover, the use of the photograph and the use of quotes for fictional statements are not the only [the opinion apparently omits some words here -EV] article is both indexed and published as the lead story under the heading of "News" in a section ordinarily devoted to hard-hitting investigative news. Alongside the article there is a column noting that the article's author had recently won a Katie Award for best general news story, thereby adding credence to her credentials as a news reporter. Additionally, the article interweaves references to an actual incident in which a minor from the same city was detained for a terroristic threat stemming from a homework assignment no less than a week prior to this article's publication. Further, the Dallas Observer fails to provide any kind of disclaimer or note to the reader that the article was a parody or satire.

After examining the evidence in the light most favorable to the non-movants, we hold there is evidence raising a genuine issue of material fact that the "Stop the Madness" article fails to provide any notice to a reasonable reader that it was a satire or parody and that a reasonable reader could conclude that the article made statements of fact. Accordingly, the trial court did not err in denying the Dallas Observer's motion for summary judgment. The Dallas Observer failed to establish as a matter of law that a reasonable person would perceive or understand that the publication did not make false statements of actual fact concerning Isaacks and Whitten.

And Gov. Newsom's assertion that the Harris video is prohibited by the law highlights the uncertainty. I say the video isn't covered by the law; Newsom says it is; how certain can we be how a judge will decide?

Plus a lawsuit under the statute can be brought by any "recipient of materially deceptive content distributed in violation of this section, candidate or committee participating in the election, or elections official." How certain can a satirist be that he won't be subjected to a lawsuit by some such person—even a lawsuit that might eventually be dismissed, but that the satirist will still have to find a lawyer to defend?

This is particularly true given many people's quite sincere concern about the possibility that even a few voters might be misled. For instance, when I asked about this matter on a discussion list I'm on, one person suggested that the test should be whether it's "clear all along" that an ad is satirical. That's not the test as applied in cases such as New Times, and in any event I think that for the Harris ad the satirical quality is clear from the first sentence. But I think it highlights how some people might try to define the reasonable person down in this sort of situation.

And, more broadly, it's hard to be entirely confident how a judge will decide how a reasonable person would understand an item, especially in the heat of a partisan election campaign in which judges, being human, may have their own subconscious biases. That's especially so given that an earlier version of the law categorically exempted "satire or parody," even when it is "materially deceptive" (rather than mandating a disclosure in such situations, and making the satirical material illegal if no disclosure is provided). A  court might view the change from that earlier version as a signal to read "materially deceptive" more broadly, to sweep in a considerable amount of satire.

[5.] Now of course this doesn't dispose of whether laws such as California's are a good idea. There's a risk of error in applying the reasonable person test in libel law, and thus erroneously punishing material that is actually satire—but that isn't generally seen as a reason to categorically reject libel law. Likewise, any law that aims to punish true threats of violence may end up sweeping in jokes, and put the jokesters through the criminal prosecution grinder even if they are ultimately vindicated; but that isn't generally seen as a reason to reject threats laws altogether. Perhaps we should similarly still embrace some laws forbidding intentionally deceptive election-related speech, despite the risk that some satire might inadvertently get swept in (especially if we think that on balance courts will apply the "reasonable person" test sensibly).

My point in this post, however, has been to establish what the California law (and similar ones) is not:

  1. It is not a categorical ban on all digitally created or modified materials ("deepfakes" or otherwise) that depicted someone doing or saying something they didn't do or say. Some satire just isn't "materially deceptive" to a "reasonable person," and thus doesn't have to have the satire disclosure under the law.
  2. It also doesn't give categorical protection to things that you and I might agree are satire. Court decisions may set precedents that provide more protection for satire, borrowing from some of the defamation cases (or perhaps less protection, if courts so choose). But for now, the exact scope of any protection for satire is not clear.