A federal judge has struck down a California law signed by Gov. Gavin Newsom that prohibits the creation of deepfake images and videos of politicians after conservative Christian satire site Babylon Bee and others sued.
In a decision released Friday, U.S. District Judge John Mendez of the Eastern District of California ruled that the Assembly Bill 2839, which bans most deepfakes of political figures, “discriminates based on content, viewpoint, and speaker and targets constitutionally protected speech.”
“Rather than targeting content that procures tangible harms or materially advantages a speaker, AB 2839 attempts to stifle speech before it occurs or actually harms anyone so long as it’s ‘reasonably likely’ to accomplish that and it allows almost anyone to act as a censorship czar,” wrote Mendez, a George W. Bush appointee.
“The far-reaching prior restraints AB 2839 implements haven’t been recognized by First Amendment caselaw to this point and haven’t any historically accepted analogs.”
California could have tailored the law to “false speech that causes legally cognizable harms like false speech that truly causes voter interference, coercion, or intimidation,” Mendez added.
“California could also limit the statute’s reach to factual statements which can be demonstrably false just like the time, date, place, or manner of voting,” he continued.
The Babylon Bee and other plaintiffs were represented by the Alliance Defending Freedom, a non secular freedom legal organization that has won First Amendment cases on the Supreme Court level.
“Making fun of politicians and criticizing the federal government is a core First Amendment right. That includes using recent technology to create parody campaign ads or satirical memes,” ADF Senior Counsel Johannes Widmalm-Delphonse, who argued the case before the court, said in a statement.
“The court was right to rein in California’s blatant censorship. We cannot trust the federal government to make your mind up what’s true in our online political debates.”
Last September, Newsom signed AB 2839 and Assembly Bill 2655, which each sought to limit the extent to which deepfake media of political figures might be made during election seasons.
The law prohibited the creation of deepfakes of politicians that negatively portrayed them, and likewise allowed for candidates to file civil lawsuits against the creators of such digital media.
California Assemblymember Gail Pellerin, D-Santa Cruz, sponsored AB 2839, stating in a 2022 statement that she believed the law was “a big step in continuing to guard the integrity of our democratic process.”
“With fewer than 50 days until the final election, there may be an urgent must protect against misleading, digitally-altered content that may interfere with the election,” stated Pellerin. “California is taking a stand against the manipulative use of deepfake technology to deceive voters.”
“I’m thankful that Governor Newsom signed this laws to be certain that voters are equipped with the accurate information they should make informed decisions this November.”
The laws was instigated by a highly publicized ad created last summer by political commentator Christopher Kohls, who was certainly one of the plaintiffs within the litigation.
Kohls’ ad used a narrator voice that was digitally altered to sound like then-Democratic presidential candidate Kamala Harris as a approach to make fun of the nominee.
The ad was then retweeted by X owner Elon Musk, prompting outrage from many, including Newsom, who vowed to sign laws to ban such ads in California.
