• By On 10 December 2024 In Government, Issues, State Tags

    Court Quashes California “Deepfake” Law

    This past fall, the State of California was sued by Christopher Kohls, who, per the lawsuit, 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 (“AI”).

    He considers his videos to be parodies or satire.

    In response to videos posted by Kohls parodying presidential candidate Kamala Harris and other AI generated “deepfakes,” the California legislature enacted AB 2839, which according to Kohls, 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.

    For example, on July 26, 2024, Kohls posted a video titled “Kamala Harris Campaign Ad PARODY” to X and YouTube which depicts Vice President Kamala Harris in her campaign ad with artificially altered audio. Significantly, Vice President Harris’s voice has been manipulated to say things she did not say, including that she is “the ultimate diversity hire,” and that she spent “four years under the tutelage of the ultimate deep state puppet.” That same day, Elon Musk shared the video to his X account where his post generated over 100 million views. On July 28, 2024, California Governor Gavin Newsom responded to the video on X stating that “[manipulating a voice in an `ad’ like [Plaintiff’s] should be illegal.” Following this incident, the California legislature passed two bills addressing artificially manipulated election content, which the Governor signed into law on September 17, 2024.

    Kohls promptly sought injunctive relief to set it aside as unconstitutional under the First Amendment. The State argued AB 2839 is constitutional under the First Amendment as a restriction on knowing falsehoods that cause tangible harm. They argue that the statute meets the strict scrutiny standard, contains a safe harbor provision for parody and satire that is constitutional, and is not unconstitutionally vague.

    However, the court held:

    “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.’”

    While California has a valid interest in protecting the integrity and reliability of the electoral process, AB 2839 was determined unconstitutional because it lacks the narrow tailoring and least restrictive alternative that a content-based law requires under strict scrutiny analysis.

    As a reminder, the First Amendment reads:

    Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    The California Constitution is even broader with regard to speech:

    Art. 2. (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

    Comment: I fully understand (but do not necessarily agree) why Kohls would think his speech is protected, even if fabricated, but the law at issue seeks to resolve a significant social ill.  While he may rationalize it away as parody or satire, he should equally be responsible “for the abuse this right.”

    Stay tuned!  This case will likely be appealed to the 9th Circuit Court of Appeals for further proceedings.  But for now, the State has been stopped from enforcement.

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