California’s “Deepfake” Election Ad Ban Is Unconstitutional, Federal Court Rules
“Just as the government may not dictate the canon of comedy, California cannot pre-emptively sterilize political content.”
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:
- Federal Court Blocks California’s “Deepfake” Election Ad Ban
- California’s Crackdown On AI-Generated Political Parody Is Unconstitutional, Lawsuit Says
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:
BREAKING: The Babylon Bee has obtained this exclusive, official, 100% real Gavin Newsom election ad. https://t.co/nicrnKF5Ji pic.twitter.com/iksPVxltzI
— The Babylon Bee (@TheBabylonBee) September 18, 2024
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Comments
Newscum is flailing. Who is going to prop him up after aunt nancy goes the way of feinstein?
She’s not his aunt. She never was his aunt. And she hasn’t been propping him up. He’s been making his own destructive way in politics.
If you, Millhouse, are not a leftist or a prig scold, what was the point of your comment?
Frustrated jewish guy on the spectrum who likes to cosplay con law expert?
LMAO
Brodirt – Milhouse is the voice of reason and logic. he is definitely conservative, yet at the same time he gets the legal issues correct. The fact that many commentators dont like his comments is not a sign he is wrong. Many of his comments are corrections of other commentators misunderstanding of the law and legal principles.
Milhouse is the voice of the neocon and the swamp. Always explaining why “the law” that some blackrobes once thought up (and they are never corrupt, we have all witnessed that) prevents everybody from doing what is the right thing to do. All of which could be forgivable if it wasn’t for the smugness.
If so, who appointed him, wants or cares for his corrections. Ive been here for years, I just rarely comment; his comment here was totally un-called for, it’s a pure prig-scold “Karen” moment.
Anyone who cares about the truth appreciates being corrected when they are mistaken. Anyone who gets upset at it is a worshiper of the Father of Lies.
I explain why reality disagrees with your fantasies. The law is reality, whether you like it or not. And when you LIE about it you lose all justification for your cause. Breaking the law is rarely the right thing to do; but lying about the law is never the right thing.
How about the truth? Oh, I forgot, you Trumpaloes (as Prof J called you) don’t give a **** about the truth. That makes you exactly the same as the leftists you falsely claim to despise.
Milhouse is here for purposes of demoralization.
He creates explanations that make every leftists action the legal and proper course of action whilst those on the right, even if they are performing the same action he just praised the leftists for doing, are always, for some reason, in the wrong.
He will treat the statements of opinion of those on the right as vicious lies while extolling the outright lies of the left as virtues
All while pretending that what he proffers is some type of ‘conservatism’
He wants the right unsure and quavering, so that the party he belongs to, the Democrats, and their leftist masters, can continue unimpeded in their destruction of the US.
Azathoth is a literal demon from Hell.
Whether Newsom is or ever was Pelosi’s nephew is a matter of objective fact, and the fact is that he is not and was not. And this is easily ascertainable by anyone. Therefore the claim that he was is simply an outright filthy LIE. Anyone who justifies it simply because he doesn’t like Newsom, or who thinks that calling out the lie is somehow a sign of liking Newsom exposes himself as a person to whom truth means absolutely nothing, and that is the most evil that a person can be.
Gov. Gavin Newsom’s aunt, Barbara Newsom, was once married to Ron Pelosi, Nancy Pelosi’s brother-in-law. Barbara Newsom and Ron Pelosi divorced in 1977.
That means for a while, Gavin Newsom was related to Nancy Pelosi’s brother-in-law by marriage, but the familial relation between the two now-powerful Democrats was even more distant. Not to mention, the marriage tying the two families together ended when Gavin was 10 years old.
Exactly. She was never his aunt. An aunt’s ex-sister-in-law is not an aunt, and not a close relative at all.
Newsom did its best to create an insurrection with this move
When it comes to uncomfortable speech, sh*tlibs’ first instinct is to censor it, unless of course “excuse me, I’m speaking.”
If this law had been allowed to stand, and with California 95% democrat controlled, it would have only been enforced in one direction.
That part isn’t true. Anyone could sue under this law, no standing required, so there would have been many suits brought against pro-Dem videos too. And the courts remain neutral enough that all videos would have been judged by the same standards.
Oh thank you so much for pointing that out, just like conservatives get a fair shake in DC because “the courts remain neutral enough.” Conservatives have an even chance of landing a conservative judge. Conservatives have an even chance of landing a conservative-leaning jury. Liberals in blue states don’t cheat with “random selection” like they do with everything else. These people have strong morals. They wouldn’t risk doing such things because, you know, there are likely to be consequences. Everyone is under the law.
First of all, what has DC got to do with this. Second, it doesn’t matter whether a judge is conservative or liberal or whatever; the overwhelming majority of judges are professional and honest, and take the law as they find it. This purported law allowed anyone to sue; had it survived it would have been used against videos from all sides of politics, and the courts would have been honest enough to judge them all by the same standards.
When a video convincingly portrays someone as speaking words that they clearly did not speak, there’s no judgment call involved; it’s a deepfake, and would therefore have been covered by this purported law. So three cheers for the first amendment, which you, like the leftists, would love to destroy. It exists to protect everyone.
Nobody else does it like The Bee.
.
“Deepfakes Threaten Democracy!” Pleads Deeply Fake Governor
Banning “materially deceptive” content from political ads would mean an end to 99% of all political ads for Democrats.
It would on a level playing field.
It would actually subject 100% of political advertisements to injunctions, lawsuits and court scrutiny.
No, it wouldn’t. They have enough ads that avoid lying, by merely not saying anything substantive at all.
Disorderly Conduct:
I am the workaround to the constitution for the police and government to find something to punish me with.
AB2839:
Hold my beer! Government giving itself the power to define what is an “Election Communication” and determine what is “Materially Deceptive”
The vile, stupid and evil Dhimmi-crats are wretched totalitarians, to their cores.
The Dhimmi-crat/Islamofascist-Muslim supremacist alliance makes total sense, given that the latter cohort also can’t countenance any mockery or satire.
This law was so broad that a politician running for Governor could be sued over an ad where they stated they were going to do something that took legislative approval. Even if they really intended to try and do it by getting the legislature to vote with them it could be considered misleading to say they were going to do it. Every promise would have to be explained by saying I am going to try and get the legislature to do this. Good luck getting more than one or two promises in a 30 second spot.
In a room of dramacrats Newscum might be the worst, and if not the worst a close second. God help us all if this stupid ignorant narcist is ever elected. He is the white Obama although all his errors are his own and not his handlers.
I don’t think “Milhouse” exists. The “Milhouse” here is almost certainly a deepfake created by Professor Jacobson in order to boost the number of comments on his blog and at the same time irritate and annoy real commenters to respond.
Like Mrs Pentherby in the Saki story.
That Babylon Bee ‘Newsom’ deepfake is the best thing that’s hit the screen this year. Uses fibs to illuminate the truth. Nothing better!