I previously criticized the California law, called the Defending Democracy from Deepfake Deception Act of 2024, as flagrantly unconstitutional.
Signed by California Gov. Gavin Newsom, the law would have gutted free speech protections for political parodies.
Now, in Kohls v. Bonta, Senior U.S. District Judge John Mendez has rebuked the state for a law that he concluded had to be rejected in its entirety as flawed to its core: “No parts of this statute are severable because the whole statute is preempted. No parts of A.B. 2655 can be salvaged.”
An example of the challengers was described by the court:
“Plaintiff Christopher Kohls (aka “Mr. Reagan”) is an individual who creates digital content about political figures. His videos contain demonstrably false information that include sounds or visuals that are significantly edited or digitally generated using artificial intelligence …. Plaintiff’s videos are considered by him to be parody or satire. In response to videos posted by Plaintiff parodying presidential candidate Kamala Harris and other AI generated “deepfakes,” the California legislature enacted AB 2839. AB 2839, according to Plaintiff, would allow any political candidate, election official, the Secretary of State, and everyone who sees his AI-generated videos to sue him for damages and injunctive relief during an election period which runs 120 days before an election to 60 days after an election….”
Social media companies like X Corp. challenged Assembly Bill 2655, which requires certain platforms to remove “materially deceptive content” about political candidates, elections officials, and elected officers.
Challengers argued that federal law gives service providers immunity from suits stemming from content created by a third party. They also argued that the law violated the First Amendment.
Mendez agreed with the companies that the law “punishes [social media companies] for doing something that they’re clearly protected by [the Communications Decency Act] from doing.”
Attorney Johannes Widmalm-Delphonse, representing plaintiffs the Babylon Bee and Kelly Chang Rickert, argued the required disclaimer under the law constituted compelled speech because it changes what the content creator wants to say: “A disclaimer kills the joke.”
The court agreed:
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. 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. “‘Especially as to political speech, counter speech is the tried and true buffer and elixir,’ not speech restriction.” …
It is a powerful statement in support of free speech. The opinion also further separates this country from the anti-free speech measures coming out of the European Union.
What is interesting is how California pulled out the same old saw used by many in the anti-free speech community in claiming that common law defamation shows that speech can be curtailed. I have previously addressed that flimsy argument, including in my book The Indispensable Right: Free Speech in an Age of Rage. The court wrote:
While Defendants attempt to analogize AB 2839 to a restriction on defamatory statements, the statute itself does not use the word “defamation” and by its own definition, extends beyond the legal standard for defamation to include any false or materially deceptive content that is “reasonably likely” to harm the “reputation or electoral prospects of a candidate.” At face value, AB 2839 does much more than punish potential defamatory statements since the statute does not require actual harm and sanctions any digitally manipulated content that is “reasonably likely” to “harm” the amorphous “electoral prospects” of a candidate or elected official.
Moreover, all “deepfakes” or any content that “falsely appear[s] to a reasonable person to be an authentic record of the content depicted in the media” are automatically subject to civil liability because they are categorically encapsulated in the definition of “materially deceptive content” used throughout the statute. Thus, even artificially manipulated content that does not implicate reputational harm but could arguably affect a candidate’s electoral prospects is swept under this statute and subject to civil liability.
The statute also punishes such altered content that depicts an “elections official” or “voting machine, ballot, voting site, or other property or equipment” that is “reasonably likely” to falsely “undermine confidence” in the outcome of an election contest. On top of these provisions lacking any objective metric and being difficult to ascertain, there are many acts that can be “do[ne] or [words that can be] sa[id]” that could harm the “electoral prospects” of a public official or “undermine confidence” in an election
Almost any digitally altered content, when left up to an arbitrary individual on the internet, could be considered harmful. 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. As Plaintiff persuasively points out, AB 2839 “relies on various subjective terms and awkwardly-phrased mens rea,” which has the effect of implicating vast amounts of political and constitutionally protected speech.
Defendants further argue that AB 2839 falls into the possible exceptions recognized in U.S. v. Alvarez (2012) for lies that involve “some … legally cognizable harm.” However, the legally cognizable harms Alvarez mentions does not include the “tangible harms to electoral integrity” Defendants claim that AB 2839 penalizes. Instead, the potentially unprotected lies Alvarez cognized were limited to existing causes of action such as “invasion of privacy or the costs of vexatious litigation”; “false statements made to Government officials, in communications concerning official matters”; and lies that are “integral to criminal conduct,” a category that might include “falsely representing that one is speaking on behalf of the Government, or … impersonating a Government officer.” 567 U.S. at 719-722 (2012). AB 2839 implicates none of the legally cognizable harms recognized by Alvarez and thereby unconstitutionally suppresses broader areas of false but protected speech.
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. In New York Times v. Sullivan, the Supreme Court held that even deliberate lies (said with “actual malice”) about the government are constitutionally protected. The Supreme Court further articulated that “prosecutions for libel on government”—including civil liability for such libel—”have [no] place in the American system of jurisprudence.” See also Rosenblatt v. Baer (1966) (holding that “the Constitution does not tolerate in any form” “prosecutions for libel on government”). 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….
The law was struck down under the strict scrutiny standard, another expensive loss for California democrats who continue to pass impulse-buy legislation with impunity.
It is only the latest assault on free speech from the left and it is unlikely to be the last.
Fortunately, there remain judges like Mendez who remained tightly tethered to our constitutional values:
In addition to encumbering protected speech, there is a more pressing reason to meet statutes that aim to regulate political speech, like AB 2839 does, with skepticism. To quote Justices Breyer and Alito in Alvarez, “[t]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech.” In analyzing regulations on speech, “[t]he point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth” in certain settings.
The political context is one such setting that would be especially “perilous” for the government to be an arbiter of truth in. AB 2839 attempts to sterilize electoral content and would “open[] the door for the state to use its power for political ends.” “Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’” When political speech and electoral politics are at issue, the First Amendment has almost unequivocally dictated that Courts allow speech to flourish rather than uphold the State’s attempt to suffocate it.
Well said Judge Mendez and thank you.
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