An online satire video creator known under the moniker "Mr. Reagan" has become the first to challenge California's new laws concerning so-called "deepfakes" aimed at Democratic presidential nominee Vice President Kamala Harris and other political candidates, saying California's new laws violate the First Amendment.
On Sept. 17, California Gov. Gavin Newsom signed into law three bills the governor and California Democrats say are needed to prevent "misleading, digitally-altered content that can interfere with" elections from being circulated online.
That same day, one of the creators whose work was cited by Newsom as an example of such allegedly deceptive work sued, seeking court orders declaring the laws unconstitutional, asserting the laws would essentially outlaw some forms of satire aimed at politicians.
Ted Frank
| HLLI.org
The lawsuit was filed in Sacramento federal court by online content creator and satirist Christopher Kohls. Officially a resident of Los Angeles, Kohls is described as a "nomadic YouTube and Twitter star, traveling as a tourist from one international locale to another." He is known online as "Mr. Reagan" and is the owner of the X account handle @MrReaganUSA, as well as associated profiles on YouTube and Facebook. According to the complaint, Kohls had 80,000 followers on X, formerly known as Twitter, as of Sept. 17 and 360,000 subscribers on YouTube.
"Political satire is a fundamental First Amendment right," Kohls said in his complaint.
In the complaint, Kohls accuses Newsom and his Democratic allies in the California state legislature of targeting the laws at him and other online political satirists, in a bid to at a minimum pressure social media platforms to remove such videos from their platforms and allow the state to turn companies, like X Corp., Facebook and Instagram parent Meta and Google, which owns YouTube, into unofficial political speech censors.
The lawsuit centers on a video Kohls created and posted to his "Mr. Reagan" profiles, which lampoons Kamala Harris. In the video, Kohls parses together real video and audio clips of Harris with additional audio he created using artificial intelligence (A.I.) to mimic Harris' voice and speech patterns.
In the video, Kohls uses the so-called "deepfake" technology to make Harris seem to say she is "the ultimate diversity hire," chosen because she is "a woman and person of color."
"So if you criticize anything I say, you are both sexist and racist," the fake generated Harris impersonation says in the video.
"I may not know the first thing about running the country, but remember, that’s a good thing if you’re a deep state puppet. I had four years under the tutelage of the ultimate deep state puppet; a wonderful mentor, Joe Biden. Joe taught me rule number one: carefully hide your total incompetence.
"I take insignificant things and I discuss them as if they’re significant. And I believe that exploring the significance of the insignificant is itself significant," the faked Harris says in the video.
The video further uses the impersonation of Harris to assert Harris fakes an accent to "sound black" and to mimic Barack Obama, among other mockery.
The video ends with a faked Harris saying: "You think the country went to [beeped out expletive] over the past four years? You ain’t seen nothing yet. [Cackles]."
The video drew even greater attention when it was grabbed in July when it was shared by X Corp. owner Elon Musk.
In response to that share, Newsom posted to X himself, saying he intended to sign legislation soon to make such videos illegal, calling them misinformation intended to deceive voters in the run up to the presidential election.
“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," Newsom posted on X on July 28.
After he signd the bill, Newsom shared again his July 28 post, adding: "I just signed a bill to make this illegal in the state of California. You can no longer knowingly distribute an ad or other election communications that contain materially deceptive content - including deepfakes."
In all, Newsom signed three bills.
According to a release from the governor's office, the laws when read together place new requirements on social media platform operators to both remove or "label" content which may be considered "deceptive" by the state or others, and empowers both the Attorney General's office and elected officials and candidates to sue the content creators and social media platforms both before and after an election.
California Assemblymeber Gail Pellerin, D-Santa Cruz, who chairs the Assembly's elections committee, said the legislation is needed to "protect the integrity of our democratic process" and take "a stand against the manipulative use of deepfake technology to deceive voters."
Assemblymember Marc Berman, D-Menlo Park, called the laws "a win for California's voters and for our democracy."
In his lawsuit, however, Kohls said the laws are little more than an attempt by the Democrats who dominate California's state government to silence some political opponents whose speech they find objectionable.
Kohls' lawsuit notes the laws were revised before the vote explicitly to remove a full carveout for political satire or parody. Those forms of speech have long been considered to be constitutionally protected from direct or indirect government censorship.
Instead, that carveout was replaced with language requiring potentially massive labels on the video itself throughout its duration that it contains deceptive or faked material. Kohls noted the new laws would have required him to include such a label on his Kamala Harris parody video that would have been so large the full label would not have fit on the screen on a smartphone or other mobile device and would have covered the video entirely.
While the state has not yet taken action against him directly, Kohls said the new laws will lead to his posts being restricted or altered in such a way they would be useless or unrecognizable, making such posts all but impossible to produce and publish, chilling speech from him and other creators and other such "deepfake" parody videos.
Kohls is seeking court orders declaring the legislation unconstitutional and blocking the state or any elected officials or candidates for office from using the law to bring any action against him or others.
In response, a spokesperson for Newsom said the governor and his team believe Kohls is misinterpreting their new laws.
Newsom's spokesperson said the laws only "expand the scope of existing law" concerning "materially deceptive material." And she noted they believe other states have similar statutes on the books.
Newsom's office asserted the laws do not ban parody, comedy, AI generated content or memes.
"The person who created this misleading deepfake in the middle of an election already labeled the post as a parody on X. Requiring them to use the word 'parody' on the actual video avoids further misleading the public as the video is shared across the platform," said Newsom's communications director Izzy Gardon, in a prepared statement.
"It's unclear why this conservative activist is suing California. This new disclosure law for election misinformation isn't any more onerous than laws already passed in other states, including Alabama.
"We're proud California did expand the law to also include misinformation about election workers for two months after an election — so that malicious actors don't attempt to disrupt the democratic process."
Kohls is represented in the action by attorneys Theodore "Ted" Frank and Adam E. Schulman, of the Hamilton Lincoln Law Institute, of Washington, D.C.
Frank is a high profile attorney who has built a professional reputation for challenging laws that abridge First Amendment rights and for challenging unfair class action lawsuit settlements.
Frank did not respond to a request from The Record for comment on the lawsuit or the statements from the governor and his office regarding the laws.
On X, however, Frank announced the filing of the lawsuit, saying the lawsuit was intended "to enjoin enforcement of these unconstitutional bills."
He then responded to someone mocking Kohls' lawsuit by saying: "2-0 against California the last two times we sued over bills Newsom signed. They owe us some money actually." He then added: "Emailed with a California deputy attorney general yesterday, they’ve just FedExed us a 42 USC §1988 check for the last first amendment case we won. I’ll post a photo next week."