In a recent development, a California law that was enacted in response to artificial intelligence (AI) parodies of Vice President Kamala Harris, a close ally of Governor Gavin Newsom, has been invalidated.
U.S. District Judge John A. Mendez declared the law to be in breach of the First Amendment. The plaintiff in the case has been awarded a preliminary injunction, which temporarily halts the law's implementation as the case proceeds.
According to The Post Millennial, Judge Mendez criticized the law, stating, "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." The law in question prohibited the posting or distribution of AI or deepfakes that could be "materially deceptive" in relation to elections during the periods leading up to and following elections.
The law's inception can be traced back to July, when a fabricated campaign advertisement for the Harris-Walz campaign gained traction online. The ad humorously depicted Harris as the first DEI candidate on a presidential ticket. The parody was widely shared and enjoyed, even by Elon Musk, who tweeted it. In response to the ad, Governor Newsom declared, "Manipulating a voice in an 'ad' like this one should be illegal. I'll be signing a bill in a matter of weeks to make sure it is."
However, Newsom and the state of California were swiftly sued for First Amendment violations by YouTuber Christopher Kohls, who had shared the video. Judge Mendez granted the injunction, stating that "Kohls is Likely to Succeed in showing that AB 2839 Facially Violates the First Amendment."
Journalist Michael Shellenberger provided insights into the ruling, applauding it and quoting, "In New York Times v. Sullivan, the Supreme Court held that even deliberate lies (said with 'actual malice') about the government are constitutionally protected. 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."
In his ruling, Judge Mendez stated, "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."
Mendez's ruling aligns with the principle that the remedy for undesirable speech is more speech, not restrictions on speech. He emphasized that counter speech is the "tried and true buffer and elixir, not speech restriction," especially in the realm of political discourse.
The judge further stated, "AB 2839 is unconstitutional because it lacks the narrow tailoring and least restrictive alternative that a content based law requires under strict scrutiny." He also addressed the parody of Harris that Newsom had taken issue with, noting that the video depicted Harris as "the ultimate diversity hire," and after Musk shared it, it garnered over 100 million views.
Following Newsom's enactment of the law, Musk shared the video again, stating, "The governor of California just made this parody video illegal in violation of the Constitution of the United States. Would be a shame if it went viral."
The ruling pointed out that "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, the ruling stated that "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 deception content' used throughout the statute." This implies that the law punishes content that does not necessarily cause harm, based solely on the perception that it could.
The controversy surrounding Musk's sharing of the parody ad and the ensuing legal battle became a hot topic on social media. Musk, a staunch advocate for free speech, celebrated the court's decision, posting, "Californias unconstitutional law infringing on your freedom of speech has been blocked by the court. Yay!"
Journalist Shellenberger echoed this sentiment, quoting the ruling: "'whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles' of the First Amendment 'do not vary' and Courts must ensure that speech, especially political or electoral speech, is not censored."
The ruling serves as a reminder of the importance of free speech, even in the face of technological advancements and the potential for misuse. It underscores the enduring principles of the First Amendment and the need to protect political and electoral speech from censorship. As the case continues, it will be interesting to see how this precedent influences future legislation and the ongoing debate about the intersection of technology, free speech, and politics.
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