California’s controversial “deepfake” election ad ban is unconstitutional, a federal court has ruled.
The law restricting AI-generated political parody “suffers from a compendium of traditional First Amendment infirmities, stifling too much speech while at the same time compelling it on a selective basis,” Federal District Judge John Mendez, a Bush appointee, wrote on Friday.
Legal Insurrection readers may recall how, weeks before last year’s election, two laws restricting AI-generated content were pushed through the California legislature to crack down on political parody videos of presidential candidate Kamala Harris, as well as other digital “deepfakes.”
The legislation had taken on political urgency over the summer after Governor Gavin Newsom called one of those videos “illegal.”
YouTube influencer Christopher Kohls, aka “Mr. Reagan,” posted the viral election satire video targeted by Newsom. In a lawsuit later joined by the Babylon Bee, Kohls challenged the new laws, claiming they violated his free speech rights under the First Amendment.
We covered the court case here:
Judge Mendez’s ruling last week concerned AB 2839, which regulates all election-related content that is “materially deceptive” and permits any viewer of such content to sue for general or special damages.
In October, denouncing the deepfake ban as “plainly unconstitutional,” the judge blocked the disputed provisions of AB 2839 while the case was pending.
And now, the district court has permanently enjoined the State from enforcing the law against the plaintiffs.
The court found the deepfake ban discriminates based on content, viewpoint, and speaker, and targets constitutionally protected speech.
The statute goes beyond “historical exceptions to the First Amendment,” Judge Mendez wrote. It only punishes content that could “harm” a candidate’s electoral prospects, while materially deceptive content that helps a candidate would not be subject to penalty under the law. “These distinctions are the essence of viewpoint discrimination.”
“It also treats different speakers dissimilarly, subjecting certain individuals to stricter rules and other speakers to more lenient rules.”
Meanwhile, by allowing almost “any person” to file a complaint, the California ban creates the “real risk” of malicious lawsuits that could chill protected speech.
While the court recognized that political deepfakes pose a risk to election integrity and that California has a compelling interest in regulating them, the State failed to show it had done so by the least restrictive means.
For example, although the statute includes a “safe harbor” for “deepfake” creators who label their content with a disclaimer, the size requirement of the disclaimer would take up an entire screen in many instances, effectively banning the video, as illustrated here.
“Put simply,” Judge Mendez wrote, “a mandatory disclaimer for parody or satire would kill the joke.”
“To be sure,” the court concluded, “deepfakes and artificially manipulated media arguably pose significant risks to electoral integrity, but the challenges launched by digital content on a global scale cannot be quashed through censorship or legislative fiat. Just as the government may not dictate the canon of comedy, California cannot pre-emptively sterilize political content.”
Speaking of comedy, Judge Mendez may have hit upon the real reason for the California election ad ban.
While Governor Newsom said it was to “safeguard the integrity of our elections,” I always suspected it was because, as they say, the Left can’t meme.
At least, not as good as this:
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