A judge in California ordered a preliminary injunction against AB 2839, a new California law that would punish people who knowingly share election related deepfakes online. According to Judge John Mendez of the Eastern District of California, the new law likely violates the First Amendment.
On July 26, Elon Musk shared a video of Kamala Harris on X that had been manipulated using AI. The parody campaign spot had altered Harris’s voice to say things she’d never said and likely would never say. Two days later, California Governor Gavin Newsom said in his own post on X that manipulating a voice like that for an ad should be illegal. “I’ll be signing a bill in a matter of weeks to make sure it is,” he wrote.
Newsom made good on the promise and signed 18 different AI related laws in mid September. One of them was AB 2839, which targets the people who post and share AI deepfakes of political candidates online. Those convicted of knowingly spreading election-related deepfakes in California could be forced to take the posts down and pay civil monetary penalties.
I just signed a bill to make this illegal in the state of California.
You can no longer knowingly distribute an ad or other election communications that contain materially deceptive content — including deepfakes. https://t.co/VU4b8RBf6N
— Gavin Newsom (@GavinNewsom) September 17, 2024
A day after Newsom signed AB 2839, Christopher Kohls filed a lawsuit in California arguing it was unconstitutional. Kohls goes by “Mr Reagan” online and is the person who created the parody Harris campaign ad that Musk shared on X. His argument was simple. Punishing him for posting election related deepfakes violated the First Amendment of the Constitution.
Judge Mendez agreed with him. The temporary injunction does not overturn the law, but blocks its effects until Kohls lawsuit is resolved. According to Mendez, Kohls will probably win. “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,” Mendez said in the ruling. “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.”
Mendez had several criticisms of the law, including that it was too broad. “Almost any digitally altered content, when left up to an arbitrary individual on the internet, could be considered harmful,” he said. “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.”
He also noted that Supreme Court precedent has long been on the side of free speech when faced with thorny issues around public figures. Even when people knowingly spread false information. “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,” he said.
For precedent, Mendez leaned on The New York Times v. Sullivan, a famous Civil Rights-era case. In 1960, The New York Times published a full page ad from Martin Luther King Jr. supporters that called about the police of Montgomery, Alabama. Some of the facts in the ad were wrong and the police sued. The case went all the way to the Supreme Court and the Times won.
“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,” Mendez said.
Mendez said that he understood California was worried about deepfakes, but that AB 2839 was an overreaction to the problem. “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,” he said. “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.”
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