The state of California can't enforce a new law supposedly aimed at deceptive political deepfakes - but which critics say would empower the state's Democratic supermajority to ban high tech parodies that target Democrats - after a federal judge agreed the law tramples the First Amendment and "has no place in our system of governance."
The law "does not pass constitutional scrutiny," wrote U.S. District Judge John A. Mendez in his ruling.
"... The Court acknowledges that the risks posed by artificial intelligence and deepfakes are significant, especially as civic engagement migrates online and disinformation proliferates on social media. Against this backdrop, the Court does not enjoin the state statute at issue in this motion lightly...
Frank
| HLLI.org
"However, most of (the law) 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."
In his ruling, Judge Mendez issued a preliminary injunction, blocking Attorney General Rob Bonta and other California officials from attempting to enforce the provisions of the law known as AB2839.
The law was signed into law by Gov. Gavin Newsom on Sept. 17. Newsom and other Democrats said the law was needed to prevent "misleading, digitally-altered content that can interfere with" elections from being circulated online.
On various social media platforms including X, YouTube and Facebook, Kohls is known as MrReagan. He enjoys a following of hundreds of thousands of users across all platforms.
In the complaint, Kohls accuses Newsom and his Democratic allies in the California state legislature of targeting him and other online political satirists in a bid to, at least, pressure social media platforms to remove such vides from their platforms and allow the state to turn social media companies into unofficial political speech censors.
The lawsuit centers on a video Kohls created and posted to his "Mr. Reagan" profiles, which lampoons Newsom's friend and political ally, Vice President Harris. In the video, Kohls parsed together real video and audio clips of Harris with additional audio he created using artificial intelligence to mimic Harris' voice and speech patterns.
In the video, Kohls uses 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," the faked Harris says in the video.
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 signed 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."
Newsom and other California Democrats called the law "a win ... for our democracy" and asserted the law was needed to "protect the integrity of our democratic process" and to "take a stand against the manipulative use of deepfake technology to deceive voters."
They further argued in court that the law should be constitutionally allowed because it only seeks to restrict deceptive speech and would protect the integrity of elections in the state.
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.
Under the law, those believed to be in violation could be subjected to direct enforcement actions from the state or lawsuits brought by politicians who assert they have been attacked by a deepfake in violation of the law. Violators could face substantial civil penalties in the forms of fines and money damages.
In his ruling, Judge Mendez said he found the labeling requirement to be as problematic as the rest of the law, noting satire has long been used in American politics to express political speech and ideas.
"Even if AB2839 were only targeted at knowing falsehoods that cause tangible harm, these falsehoods as well as other false statements are precisely the types of speech protected by the First Amendment," the judge wrote, noting that Supreme Court decisions have explicitly protected "deliberate lies about the government" as constitutional free speech.
"... 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 AB2839 have no place in our system of governance."
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.
In a post on X following the ruling, Frank simply said: "Victory for @mrreaganusa."