Federal judge strikes down California’s new “deepfake” law as “plainly unconstitutional”

[UPDATE]  A U.S. district court judge has ruled that a new California law banning any communication that the state deems as false and harmful to a candidate’s electoral prospects or that it claims undermines confidence in the electoral process is unconstitutional.

Social media personality Chris Kohls, known as “Mr. Reagan,” filed a lawsuit challenging California’s AB 2839 after the state passed it in response to one of his videos, a parody of a campaign ad using AI technology that made it sound like the candidate said things they had not said.

The video is clearly described as a parody, but state officials, including Gov. Gavin Newsom, D, determined that such material should be illegal.

On Wednesday, Judge John Mendez sided with Kohls, saying that the law was overly broad and unconstitutional.

He rejected the state’s argument for the law, writing,

“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.’”

Mendez applied the test handed down by the Supreme Court in Moody v. NetChoice LLC, which says that if “a law’s unconstitutional applications substantially outweigh its constitutional ones” a court may strike down the law.

“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,” Mendez ruled.

“Upon weighing the broad categories of election related content both humorous and not that AB 2839 proscribes, the Court finds that AB 2839’s legitimate sweep pales in comparison to the substantial number of its applications, as in this case, which are plainly unconstitutional.”

Mendez cited numerous Supreme Court rulings providing precedent on free speech cases regarding political content.

“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,” Mendez ruled.

“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.”

Mendez noted that there is an even more serious reason to strike down the law than that it encumbers protected speech: It would effectively make the government the final decision on what is true and not true when it comes to political speech.

“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.’”

Mendez recognized the real danger posed by artificial intelligence and deepfakes and did not enjoin the law “lightly,” but he argued that “most of AB 2839 acts as a hammer instead of a scalpel, serving as a blunt tool that hinders humorous expression and unconstitutionally stifles the free and unfettered exchange of ideas which is so vital to American democratic debate.”

Replying to the ruling on X, Kohls celebrated, “VICTORY! Lawsuit against Newsom has been won.”

The Hamilton Lincoln Law Institute (HLLI) represented Kohls, and senior attorney Adam Schulman called the ruling a “powerful reaffirmation of free speech values in a world of new technology.”

While HLLI said it does not know if California will appeal the decision, a spokesperson for Newsom’s office issued a statement arguing that deepfakes “threaten the integrity of our elections, and these new laws protect our democracy while preserving free speech.”

Newsom’s spokesperson added, “We’re confident the courts will uphold the state’s ability to regulate these types of dangerous and misleading deepfakes. Satire remains alive and well in California — even for those who miss the punchline.”

HLLI also will file a lawsuit challenging AB 2655, a similar law that does not go into effect until January 1, 2025.

Satire site The Babylon Bee and fellow plaintiff Kelly Chang Rickert earlier this week also filed a lawsuit challenging AB 2839 and the related AB 2655 (see article below for more details).

---

ORIGINAL ARTICLE

{Originally published on October 2, 2024} The Babylon Bee, the popular Christian satire site, has filed a lawsuit challenging two new California laws that restrict the ability to mock or criticize political candidates and elections.

In explaining the legal action, Babylon Bee CEO Seth Dillon stated, “Our job is hard enough when our jokes keep coming true, as if they were prophecies. But it becomes significantly more difficult when self-serving politicians abuse their power to try and control public discourse and clamp down on comedy. Unfortunately for them, the First Amendment secures our right to tell jokes they don’t like.”

The lawsuit is the culmination of a series of events that started this summer. In July, a political commentator created a satirical video of a campaign ad for a national candidate that was clearly marked as parody but used artificial intelligence (AI) to make it look like the candidate was saying things that hadn’t been said in real life.

The video garnered widespread attention online, including being reposted by X owner Elon Musk, whose post gained over 100 million views.

Despite the clear statement that the video was a parody, California Gov. Gavin Newsom, D, posted that the video “should be illegal” and promised to “sign a bill in a matter of weeks to make sure it is.”

Following Newsom’s promise, the California General Assembly expedited the passage of two bills, AB 2655 and AB 2839, which were promptly signed into law in mid-September by Newsom.

The laws, which took place immediately, bar “materially deceptive content” about political candidates that is “reasonably likely to harm the reputation or electoral prospects of a candidate.”

The laws also make it a crime to spread supposedly false information that casts doubt on the integrity of the election process or election results.

There is an exemption for satire; however, it requires the satirist to post such a noticeable disclaimer over the image that the plaintiffs claim it defeats the purpose — and effect — of satire.

AB 2839 initially featured a more substantive exemption for satire, stating, “This section does not apply to materially deceptive content that constitutes satire or parody” but following the parody ad and Newsom’s promise, it was removed.

The laws also provide exemptions for newspapers and certain broadcasting stations if the organization includes a disclaimer, even if the station includes the false information in the “bona fide” news.

The Babylon Bee and fellow plaintiff Kelly Chang Rickert, a lawyer and owner of a political blog, claim that the laws unconstitutionally burden the right to free speech, especially considering that the laws relate to speech about the political process, which requires judges to exercise strict scrutiny in determining a law’s constitutionality.

The suit notes that even the California General Assembly admitted that the law burdened free speech and would draw legal challenges.

The plaintiffs also argue that the broad language used in the laws give government a license to outlaw most criticism of political officials and candidates.

“These subjective terms are codewords that allow government officials and political opponents to sue over content they dislike,” the plaintiffs claim. “These broad and vague laws will chill speech and debate that criticizes politicians and their platforms.”

They continued,

“Such censorship threatens the heart of public discourse. When debating controversial political ideas, candidates, and views, it is often hard to separate fact from opinion, truth from lies, exaggerations from malicious deceptions, humor from ill will. That’s why the First Amendment gives breathing room for political ideas to air and ventilate—even ideas that are wrong or deceptive. The First Amendment protects this freedom because it trusts the American people to be able to think and decide for themselves in the context of debating political candidates and issues. California officials don’t share that trust. They want to be the arbiters of political truth online.”

Rickert added in a separate statement, “My personal blog and social media accounts don’t need Newsom’s stamp of approval. This attempt to silence humor and other content that appeals to me and my audience is a blatant use of power to silence dissent.”

The Babylon Bee has said it will continue to post content that would likely be in violation of the laws without adhering to the requirement to parrot the state’s required disclaimer. This leaves them open to imminent prosecution and lawsuits due to the state enacting the law on an emergency basis.

Rickert wants to post content but is refraining due to fear of charges, meaning the law chills her speech.

The plaintiffs are represented by Alliance Defending Freedom (ADF).

ADF Vice President of Litigation Strategy and Center for Conscience Initiatives Jonathan Scruggs stated, “California’s war against political memes is censorship, plain and simple. We shouldn’t trust the government to decide what is true in our online political debates. Gov. Newsom has no constitutional authority to act as the humor police. While lawmakers act as if posting and resharing memes is a threat to democracy, these laws at the end of the day censor speech California politicians don’t like. We are urging the court to affirm that the First Amendment protects The Babylon Bee’s and Ms. Rickert’s freedom to poke fun at political leaders.”

Let’s call this out for what it is: Newsom and members of the California General Assembly want to take away the right of Californians to criticize or mock government officials or political candidates.

Satire is so powerful because in it is a kernel (or sometimes a whole cob) of truth. Without that kernel, it will not resonate. Throughout history, authoritarians have hated satire because they cannot stand to be mocked or to have someone challenge them.

In China, when people started using images of Winnie the Pooh as a stand-in to mock or criticize President Xi Jinping to get around China’s censorship, China banned Winnie the Pooh.

California’s leaders are looking very similar to China’s leadership with their draconian law.

The First Amendment exists to protect the right of Americans to say what they want but especially to criticize and call out government leaders and politics. That is how the people exercise power and keep a check on government.

These laws give California government officials the power to determine what can and can’t be said and who can and can’t say it. Notice the exemptions granted for certain government-friendly newspapers and broadcast organizations.

There is no way these laws remain on the books as federal courts will certainly slap them down. The question is how long will it take for a court to do so? Until then, and leading up to the November elections, California is putting its thumb on the scales, attempting to keep citizens from criticizing political candidates.

---

---

If you like this article and other content that helps you apply a biblical worldview to today’s politics and culture, consider making a donation here.