A creator of viral political parody videos is suing California officials over new laws restricting AI-generated content like his from being posted and shared online.
The legislation took on political urgency over the summer after Governor Gavin Newsom called one of the videos “illegal.”
In July, the YouTuber known as “Mr. Reagan” released a parody Kamala Harris campaign ad, featuring AI-generated cuts that sound just like her. But you know you’re watching a spoof when “Harris” says things like, “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.” Or that she’s been selected because she’s “the ultimate diversity hire and a person of color, so if you criticize anything [she] say[s], you’re both sexist and racist.”
The video caught the attention of someone who knows creative genius when he sees it, Elon Musk.
He called it “amazing”:
Once Musk retweeted it, the brilliant satire also caught the attention of California Governor Gavin Newsom.
And, according to the lawsuit, even though “Mr. Reagan’s” YouTube video acknowledges its content is “digitally generated” and even though it is labeled “parody,” Newsom was not amused.
The video was too “real”: “Manipulating a voice in an ‘ad’ like this one should be illegal,” Newsom warned in a tweet two days later. “I’ll be signing a bill in a matter of weeks to make sure it is”:
Earlier this week, Newsom made good on his threat, signing into law a set of bills “to safeguard the integrity of our elections.”
“These measures will help to combat the harmful use of deepfakes in political ads and other content,” Newsom announced.
But they will also make dissemination of “Mr. Reagan’s” parody videos actionable, his lawyers say, and require social media companies to censor them.
Those videos—the express target of the new laws—are political speech protected by the First Amendment, they argue. In his lawsuit filed by the Hamilton Lincoln Law Institute (HLLI), Christopher Kohls (aka “Mr. Reagan”) challenges two of the statutes, AB 2655 and AB 2839. His lawyers ask the court to declare the laws unconstitutional and block their enforcement.
The “Defending Democracy from Deepfake Deception Act of 2024,” (AB2655) requires large social media companies to censor and label AI-generated parody videos of candidates and election videos during specified periods before and after an election.
Although the Act exempts satire and parody, the lawsuit says social media platforms will be incentivized to block content to avoid liability. Also, the Act doesn’t define “satire” or “parody.” That leaves the content creator at the mercy of the social media company or the State. They’ll have unfettered discretion to decide whether his AI-generated content is allowed under the Act, Kohls’ lawyers say.
While AB 2655 directs social media companies to enforce censorship, the second law, “Elections: Deceptive Media in Advertisements,” (AB 2839), “offloads” enforcement to the viewers, allowing them to sue to remove the content. AB 2839 applies not only to advertising, but to all ‘election communication,’ including user-created parodies like “Mr. Reagan’s,” his lawyers explain.
And though the second statute also includes a “safe harbor” for creators who label their content, the labelling requirements are so burdensome that the law amounts to a ban on his videos.
To illustrate, the lawsuit shows what “Mr. Reagan’s” parody ad would look like if he were forced to comply:
So much for the “safe harbor.” According to the lawsuit, once the video is labeled as required, there’s nothing left to see.
Kohls’s lawyers argue that his parody videos are precisely the kind of speech the First Amendment was designed to protect. In a statement, HLLI attorney Adam Schulman said the new laws are “are California’s latest misguided attempt to protect established political interests from criticism by everyday citizens sharing memes online.”
As the lawsuit also points out, sharing memes and videos is the modern way to mock presidential candidates. This is a great American tradition dating back to colonial-era cartoons. Election season used to be fun.
And that might be one unintended consequence of Newsom’s new laws: They’re inspiring even funnier genuine fakes aimed back at the opposition, like this one from The Babylon Bee:
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