It's a story at least as old as American democracy. In the midst of a heated election season, a scathing ad, a satirical pamphlet, a parody song, or a viral video alerts the powers that be to censorship.
The latest chapter in this long-running saga involves California Governor Gavin Newsom's crackdown on election deepfakes. X owner Elon Musk reposts obvious statement Parody campaign video On his platform, a deepfake of Vice President Kamala Harris mocks her as a “puppet of the deep state” and “the ultimate diversity recruiter.”
“Manipulating audio in 'ads' like this should be illegal,” Newsom declared, vowing to ban the video. And that's exactly what he did. sign to the law parliamentary bill 2839 September 17th.
The law provides that any content that is “grossly deceptive” and falsely depicts behavior likely to damage a candidate's “reputation or electoral prospects” can be used from four months before an election to two months after the election. Modified content is prohibited. The law also prohibits altered content that falsely depicts election officials, candidates, voting machines, or ballots in a way that could “undermine confidence” in elections. Government officials and the public can sue to have such content removed and win damages.
This type of censorship has questionable historical parallels. In 1798, President John Adams signed the following treaty: Alien and Disturbance Act It enacted a law banning “false, scandalous, or malicious writing” that brought the president into “disrespect or disrepute.” Using that law, his administration went after newspaper editor Matthew Lyon. publish the letter He criticized Adams for having extraordinary ambitions to become king of the new American aristocracy, adding that he was probably on the verge of insanity.
Ryan's arrest sparked an intense backlash and was a victory for free speech. Very unpopular acts were later repealed or allowed to expire. The illiberal legacy of this act remains a stain on Adams' legacy to this day.
Newsom’s parody ban will likely meet the same fate. As it turns out, in both cases, the politicians used their power to do more than actually target deceptive or defamatory speech.
The username of the creator of the Harris deepfake video, “Mr. Reagan,” has filed a lawsuit seeking to block the law, saying it violates the law. First Amendment Rights. And he's right. On October 2, just two weeks after enactment, a federal judge dominated It determined that the law was likely to violate the First Amendment and suspended its implementation.
The court explained that the First Amendment protects political speech even when it is false or harmful. In fact, “civil penalties for criticizing the government… have no place in our system of governance.” Because the law seeks to punish based on the truthfulness of speech, the court blocked its enforcement pending further review. After all, in America the marketplace of ideas, not the government, is the arbiter of truth.
Even with good intentions, we don't trust government officials to decide what's true or false in politics. And our First Amendment rights certainly do not change based on how close we are to Election Day. In fact, “” is stronger.important stage” towards the election.
In California, content covered by the law is defamatory. Not protected by the First Amendment. But the court rejected this argument, explaining that the law “acts not as a scalpel but as a hammer, a blunt instrument of obstruction.” humorous expression and . . . A free and unfettered exchange of ideas. ” Similarly, the category of speech that could “undermine confidence” in an election is so broad that it could potentially include just about anything that government officials would dislike.
Existing laws are perfectly adequate to deal with deepfakes, which have been around since the dawn of photography and are just another form of manipulated images. These are real issues, but the First Amendment already allows for restrictions on such conduct, so there is no need for broad regulations simply trying to shut down satirical or exaggerated speech.
In the end, California's law failed First Amendment scrutiny. That's because the appropriate response to deepfakes is not censorship but “counter-speech,” “no matter how offensive or inappropriate someone else deems it.” Therefore, the state cannot “ignore the long tradition of criticism, parody, and satire protected by the First Amendment.”
The court also ruled that the law's exemption for parody and satire, which requires prominent disclaimers, was likely unconstitutional. Such a disclaimer would make content like Mr. Reagan's video unwatchable, “druffing” its message.
In fact, the best satire is effective because it's believable to a point. Just ask readers of the Babylon Bee or The Onion. Or consider Jonathan Swift's iconic essay “A Modest Proposal.” What makes Swift's essay so effective is that it imitates the voice of an entitled aristocrat advocating the eating of children as a means of poverty reduction. A disclaimer will void your points.
California's would-be censors learned the hard way that censoring political speech during an election is unacceptable. The Constitution protects speech, even and perhaps especially when it offends politicians.
Censorship may rage, but free speech will prevail.
Daniel Ortner is an attorney with the Foundation for Individual Rights and Expression.
