By reducing traditional barriers of content creation, the AI revolution holds the potential to unleash an explosion in creative expression. It also increases the societal risks associated with the spread of misinformation. This tension is the subject of a recent landmark judicial decision, Babylon Bee v Bonta (hat tip to Ajit Pai, whose social media account remains an outstanding follow). The eponymous satirical news site and others challenged California’s AB 2839, which prohibited the dissemination of “materially deceptive” AI-generated audio or video content related to elections. Although the court recognized that the case presented a novel question about “synthetically edited or digitally altered” content, it struck down the law, concluding that the rise of AI does not justify a departure from long-standing First Amendment principles.
AB 2839 was California’s attempt to regulate the use of AI and other digital tools in election-related media. The law defined “materially deceptive” content as audio or visual material that has been intentionally created or altered so that a reasonable viewer would believe it to be an authentic recording. It applied specifically to depictions of candidates, elected officials, election officials, and even voting machines or ballots, where the altered content was “reasonably likely” to harm a candidate’s electoral prospects or undermine public confidence in an election. While the statute carved out exceptions for candidates making deepfakes of themselves and for satire or parody, those exceptions required prominent disclaimers stating that the content had been manipulated.
The court recognized that the electoral context raises the stakes for both parties. Because the law regulated speech on the basis of content, the court applied strict scrutiny: The law is constitutional only if it serves a compelling governmental interest and is the least restrictive means of protecting that interest. On the one hand, the court recognized that the state has a compelling interest in preserving the integrity of its election process. California noted how AI-generated robocalls purporting to be from President Biden encouraged New Hampshire voters not to go to the polls during the 2024 primary. But on the other hand, the Supreme Court has recognized that political speech occupies the “highest rung” of First Amendment protection. That tension is the opinion’s throughline: While elections justify significant regulation, they also demand the most protection for individual speech.
But it ultimately held that California struck the wrong balance. The state argued that the bill was a logical extension of traditional harmful speech regulations such as defamation or fraud. But the court ruled that the law reached much further. It did not limit liability to instances of actual harm, but to any content “reasonably likely” to cause material harm. And importantly, it did not limit recovery to actual candidate victims, but instead allowed any recipient of allegedly deceptive content to sue for damages. This private right of action deputized roving “censorship czars” across the state whose malicious or politically motivated suits risk chilling a broad swath of political expression.
Given this breadth, the court found the law’s safe harbor was insufficient. The law exempted satirical content (such as that produced by the Bee) as long as it carried a disclaimer that the content was digitally manipulated, in accordance with the act’s formatting requirements. But the court found that this compelled disclosure was itself unconstitutional, as it drowned out the plaintiff’s message: “Put simply, a mandatory disclaimer for parody or satire would kill the joke.” This was especially true in contexts such as mobile devices, where the formatting requirements meant the disclaimer would take up the entire screen—a problem that I have discussed elsewhere in the context of Federal Trade Commission disclaimer rules.
Perhaps most importantly, the court recognized the importance of counter-speech and market solutions as alternative remedies to disinformation. It credited crowd-sourced fact-checking such as X’s community notes, and AI tools such as Grok, as scalable solutions already being adopted in the marketplace. And it noted that California could fund AI educational campaigns to raise awareness of the issue or form committees to combat disinformation via counter-speech.
The court’s emphasis on private, speech-based solutions points the way forward for other policymakers wrestling with deepfakes and other AI-generated disinformation concerns. Private, market-driven solutions offer a more constitutionally sound path than empowering the state to police truth and risk chilling protected expression. The AI revolution is likely to disrupt traditional patterns of content creation and dissemination in society. But fundamental First Amendment principles are sufficiently flexible to adapt to these changes, just as they have when presented with earlier disruptive technologies. When presented with problematic speech, the first line of defense is more speech—not censorship. Efforts at the state or federal level to regulate AI-generated content should respect this principle if they are to survive judicial scrutiny.
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