The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge Blocks California Law Restricting "Materially Deceptive" Election-Related Deepfakes
The judge concluded that the law, AB 2839, likely violates the First Amendment, and therefore issued a preliminary injunction blocking it from going into effect.
From today's decision by Judge John Mendez (E.D. Cal.) in Kohls v. Bonta:
Plaintiff Christopher Kohls (aka "Mr. Reagan") is an individual who creates digital content about political figures. His videos contain demonstrably false information that include sounds or visuals that are significantly edited or digitally generated using artificial intelligence …. Plaintiff's videos are considered by him to be parody or satire. In response to videos posted by Plaintiff parodying presidential candidate Kamala Harris and other AI generated "deepfakes," the California legislature enacted AB 2839. AB 2839, according to Plaintiff, would allow any political candidate, election official, the Secretary of State, and everyone who sees his AI-generated videos to sue him for damages and injunctive relief during an election period which runs 120 days before an election to 60 days after an election….
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. 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. "'Especially as to political speech, counter speech is the tried and true buffer and elixir,' not speech restriction." …
The court began by concluding that AB 2839 doesn't fall within the existing defamation exception to First Amendment protection, and isn't subject to any other doctrine that categorically lowers protection for false statements in election campaigns:
While Defendants attempt to analogize AB 2839 to a restriction on defamatory statements, the statute itself does not use the word "defamation" and by its own definition, extends beyond the legal standard for defamation to include any false or materially deceptive content that is "reasonably likely" to harm the "reputation or electoral prospects of a candidate." At face value, AB 2839 does much more than punish potential defamatory statements since the statute does not require actual harm and sanctions any digitally manipulated content that is "reasonably likely" to "harm" the amorphous "electoral prospects" of a candidate or elected official.
Moreover, all "deepfakes" or any content that "falsely appear[s] to a reasonable person to be an authentic record of the content depicted in the media" are automatically subject to civil liability because they are categorically encapsulated in the definition of "materially deceptive content" used throughout the statute. Thus, even artificially manipulated content that does not implicate reputational harm but could arguably affect a candidate's electoral prospects is swept under this statute and subject to civil liability.
The statute also punishes such altered content that depicts an "elections official" or "voting machine, ballot, voting site, or other property or equipment" that is "reasonably likely" to falsely "undermine confidence" in the outcome of an election contest. On top of these provisions lacking any objective metric and being difficult to ascertain, there are many acts that can be "do[ne] or [words that can be] sa[id]" that could harm the "electoral prospects" of a public official or "undermine confidence" in an election
Almost any digitally altered content, when left up to an arbitrary individual on the internet, could be considered harmful. For example, AI-generated approximate numbers on voter turnout could be considered false content that reasonably undermines confidence in the outcome of an election under this statute. On the other hand, many "harmful" depictions when shown to a variety of individuals may not ultimately influence electoral prospects or undermine confidence in an election at all. As Plaintiff persuasively points out, AB 2839 "relies on various subjective terms and awkwardly-phrased mens rea," which has the effect of implicating vast amounts of political and constitutionally protected speech.
Defendants further argue that AB 2839 falls into the possible exceptions recognized in U.S. v. Alvarez (2012) for lies that involve "some … legally cognizable harm." However, the legally cognizable harms Alvarez mentions does not include the "tangible harms to electoral integrity" Defendants claim that AB 2839 penalizes. Instead, the potentially unprotected lies Alvarez cognized were limited to existing causes of action such as "invasion of privacy or the costs of vexatious litigation"; "false statements made to Government officials, in communications concerning official matters"; and lies that are "integral to criminal conduct," a category that might include "falsely representing that one is speaking on behalf of the Government, or … impersonating a Government officer." 567 U.S. at 719-722 (2012). AB 2839 implicates none of the legally cognizable harms recognized by Alvarez and thereby unconstitutionally suppresses broader areas of false but protected speech.
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. In New York Times v. Sullivan, the Supreme Court held that even deliberate lies (said with "actual malice") about the government are constitutionally protected. The Supreme Court further articulated that "prosecutions for libel on government"—including civil liability for such libel—"have [no] place in the American system of jurisprudence." See also Rosenblatt v. Baer (1966) (holding that "the Constitution does not tolerate in any form" "prosecutions for libel on government"). These 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….
The court therefore evaluated the statute, as a content-based speech restriction, under strict scrutiny and concluded that it likely failed that test:
Under strict scrutiny, a state must use the "least restrictive means available for advancing [its] interest." 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." … "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."
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. Other statutory causes of action such as privacy torts, copyright infringement, or defamation already provide recourse to public figures or private individuals whose reputations may be afflicted by artificially altered depictions peddled by satirists or opportunists on the internet. Additionally, AB 2839 by its own terms proposes other less restrictive means of regulating artificially manipulated content in the statute itself. The safe harbor carveouts of the statute attempt to implement labelling requirements, which if narrowly tailored enough, could pass constitutional muster….
In addition to encumbering protected speech, there is a more pressing reason to meet statutes that aim to regulate political speech, like AB 2839 does, with skepticism. To quote Justices Breyer and Alito in Alvarez, "[t]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech." In analyzing regulations on speech, "[t]he point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth" in certain settings.
The political context is one such setting that would be especially "perilous" for the government to be an arbiter of truth in. AB 2839 attempts to sterilize electoral content and would "open[] the door for the state to use its power for political ends." "Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about 'the clearer perception and livelier impression of truth, produced by its collision with error.'" When political speech and electoral politics are at issue, the First Amendment has almost unequivocally dictated that Courts allow speech to flourish rather than uphold the State's attempt to suffocate it.
Upon weighing the broad categories of election related content both humorous and not that AB 2839 proscribes, the Court finds that AB 2839's legitimate sweep pales in comparison to the substantial number of its applications, as in this case, which are plainly unconstitutional. Therefore, the Court finds that Plaintiff is likely to succeed on a First Amendment facial challenge to the statute.
And the court held that the disclosure requirement for materially deceptive videos that are nonetheless parody or satire was also unconstitutional:
For parody or satire videos, AB 2839 requires a disclaimer to air for the entire duration of a video in text that is no smaller than the largest font size used in the video. In Plaintiff Kohls' case, this requirement renders his video almost unviewable, obstructing the entirety of the frame. The obstructiveness of this requirement is concerning because parody and satire have relayed creative and important messages in American politics…. In a non-commercial context like this one, AB 2839's disclosure requirement forces parodists and satirists to "speak a particular message" that they would not otherwise speak, which constitutes compelled speech that dilutes their message….
Even if some artificially altered content were subject to a lower standard for commercial speech or "exacting scrutiny" instead of strict scrutiny as the Defendants argue[,] AB 2839 could not meet its "burden to prove that the … notice is neither unjustified nor unduly burdensome" under NIFLA v. Becerra (2018), or that the disclosure is "narrowly tailored" pursuant to the standard articulated for political speech disclosures in Smith v. Helzer (9th Cir. 2024). AB 2839's size requirements for the disclosure statement in this case and many other cases would take up an entire screen, which is not reasonable because it almost certainly "drowns out" the message a parody or satire video is trying to convey. Thus, because AB 2839's disclosure requirement is overly burdensome and not narrowly tailored, it is similarly unconstitutional.
Adam Schulman and Ted Frank (Hamilton Lincoln Law Institute) represent Kohls. For more on the satire question, see this post.
