The internet is full of many fake and altered images. Keeping up with fakes can be difficult, but it’s hard to image a law that could be drafted that would effectively define fake images, differentiate those that are proper from those that are improper, and provide appropriate remedies.
California, however, tried to write that law. The state put the onus on large online platforms, places like X, Meta, and Rumble, to identify, tag, and take down certain types of altered images. The law focuses on “materially deceptive content” about candidates and elected officials. Unfortunately, defining “materially deceptive content” is just part of the law’s problem.
A few organizations sued, including X and the satirical website Babylon Bee. The Babylon Bee joined the suit because the law is so vague and broad that it could easily prohibit comedically altered photos that appear on the website. People have often mistaken satirical stories for truth, underscoring the issue of what “materially deceptive” could mean. The lawsuit invokes both section 230 of the Communications Decency Act and the First Amendment. Section 230 immunizes internet platforms from responsibility for most third-party content posted on the platform. It’s why X is not generally responsible for, say, defamatory tweets on the platform; the original person who posted the tweet is.
The law was blocked by the district court and is now on appeal to the Ninth Circuit. The Manhattan Institute has joined the Washington Legal Foundation and Americans for Prosperity Foundation on an amicus brief arguing that California’s law fails in at least two ways. First, section 230 clearly prevents the state from making platforms responsible for “deceptive” content published on their sites. Second, even if section 230 didn’t exist, the law is too vague and overbroad. What “digitally modified” means is even vague. In Ronald Reagan’s famous ad featuring Michael Dukakis looking pretty silly in a tank, the creators added more tank noises and engine noises to make it look more ridiculous. Would that count? It’s unclear, which is one reason why, if the court doesn’t stop the law on section 230 grounds, the First Amendment prevents such vague laws.
Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.
Trevor Burrus is a legal policy fellow at the Manhattan Institute.
Photo: W Prasongsin Stulio / Moment
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