A pair of content moderation bills Democratic California Gov. Gavin Newsom signed in September violate the first amendment and could ruin online political satire forever, legal experts told the Daily Caller.
Newsom signed AB 2655, the Defending Democracy from Deepfake Deception Act of 2024, last week. He also signed AB 2839, the Protecting Democracy against Election Disinformation and Deepfakes Act. The bills would allow Californians to sue creators and platforms for making or hosting “materially deceptive” election content on the internet.
“This bill is a complete mess,” Aaron Terr, the Director of Public Advocacy at the Foundation for Individual Rights and Expression (FIRE) said of AB 2655. “It’s vague. It’s excessively broad. It compels speech. It’s an unconstitutional, misguided and ineffectual attempt to police online speech,” he told the Caller.
While both bills target “materially deceptive” election content, AB 2655 is distinct from AB 2839 as it uniquely goes after social media platforms. The bill would require platforms like Facebook and X to block “materially deceptive content related to elections in California” and to “label certain additional content inauthentic, fake, or false,” during election season.
As a result, many companies may end up proactively restricting content from their platforms in fear of violating the law.
“In requiring large online platforms, websites and apps, to proactively identify and remove what the bill defines as materially deceptive content, it infringes on the first amendment right of online platforms to decide what speech they want to host or publish,” Terr told the Caller.
STATEMENT: In targeting “deceptive” political content, California’s new law threatens satire, parody, and other First Amendment-protected speech.
A.B. 2839 bans sharing “deceptive” digitally modified content about candidates for office for any purpose. That means sharing such…
— FIRE (@TheFIREorg) September 18, 2024
While both bills specifically mention deepfakes, a term for AI-generated false video content, the broad language applies to content beyond the creations of artificial intelligence, Terr said.
One potential consequence of the legislation, Terr says, is it could ruin satire and political comedy online. Under the bill’s stipulation, a creator would have to clearly state they are engaging in parody before publishing any kind of election-related humor that the bill deemed to be “materially deceptive.”
“If you were sharing content or a parody you could do it as long as you label it as such. But that still presents constitutional issues because generally the government can’t restrict speech,” Terr told the Caller.
“The government couldn’t require a comedian to say, ‘I’m about to make a joke’ before every joke,” Terr continued. “Requiring satire or parody to be labeled can undermine its effectiveness. Satire or parody often works in a kind of subtle manner to convey a message or lampooning a person or subject, and part of the effectiveness is that temporary moment of confusion where it almost seems like it could be real, but it’s not. Imagine if every time you clicked on an Onion article at the top, big bold letters said “‘The following is a satire.’”
Other legal experts concurred.
“Vaughn Meader won a Grammy Award for Best Record for his imitations of John F. Kennedy back in the 60s. Rich Little made a whole career out of it. This is something that goes back to the beginning of the country to have parodies of politicians, and it’s absolutely protected speech,” Ted Frank, the director of the Hamilton Lincoln Law Institute, told the Caller.
The Institute is suing California on behalf of a YouTuber who goes by the moniker “Mr. Reagan.” Newsom called out the creator after Elon Musk reposted one of his videos in which he edited a Kamala Harris ad using AI.
Mr. Reagan used an AI-generated voiceover which sounded like Harris to say “I, Kamala Harris, am your Democrat candidate for president because Joe Biden finally exposed his senility at the debate. Thanks Joe. I was selected because I am the ultimate diversity hire. I’m both a woman and a person of color, so if you criticize anything I say, you’re both sexist and a racist. 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.”
This is amazing 😂
pic.twitter.com/KpnBKGUUwn— Elon Musk (@elonmusk) July 26, 2024
In July, Newsom referenced the video in a post on X, writing “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.”
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. pic.twitter.com/NuqOETkwTI
— Gavin Newsom (@GavinNewsom) July 29, 2024
While Newsom claimed the ad should be illegal in his post, the new laws would still allow Mr. Reagan to post his video as he marked “PARODY” in his X post. The bills lay out exceptions for certain news organizations and “materially deceptive content that constitutes satire or parody.”
The parody label, Mr. Reagan told the Daily Caller, was just a precaution as the video was “obviously a joke.”
“Nobody was tricked by it. Nobody’s fooled by it. Nobody thinks that Elon Musk was trying to trick anybody, and no one thinks I was trying to trick anybody,” he told the Caller.
“My opinion, no, they’re not fooled. I mean, it’s like a satire. It’s a joke,” Republican Assemblywoman Diane Dixon, one of the eight lawmakers to vote against AB 2655, told the Caller.
“People aren’t stupid. Voters receive a lot of information, either in print form or digital form. They know what is honest information, reliable information. I think they can discern what is false or misstatement and disparagement. Enough, it’s unconstitutional, and they can make those distinctions, they throw it away. Oh, that’s not real. It’s a joke. And throw it away. I don’t think a single voter would absorb [Mr. Reagan’s video] and think ‘Oh, my god, is that really true?’ They don’t give voters enough credit,” she concluded.
But the bill’s supporters, like Democratic California Assemblywoman Gail Pellerin, who authored the bill, say that widespread access to AI tools makes it too easy for bad actors to interfere with elections.
“Getting the right information to voters is crucial to a functioning democracy, and it becomes very difficult to ensure the integrity of the election when these deepfakes are spread online to intentionally misinform voters,” Pellerin said in March.
“Deepfakes are a powerful and dangerous tool in the arsenal of those that want to wage disinformation campaigns, and they have the potential to wreak havoc on our democracy by attributing speech and conduct to a person that is false or that never happened,” Democratic California Assemblyman Marc Berman also said.
Many, however, argue that these bills are implicitly meant to target conservatives and that Newsom seems wholly unconcerned with deceptive media coming from the left.
“He’s not crafting the law as a reaction to a video that is critical of Donald Trump,” Mr. Reagan told the Caller. “He’s creating this law as a reaction to a video that’s critical of Kamala Harris and that potentially benefits Trump in some way. So to me, this is very, very obviously partisan. And this is, in my view, this is actually election interference.”
Ted Frank echoed his sentiments.
“They’re not going after other lies. They’re not going after edited clips,” he told the Caller. “It’s both over inclusive and under inclusive.”
The Harris campaign has notably seemed to engage in their own form of online manipulation. In August a bombshell Axios report exposed the campaign for doctoring news stories to make them appear more positive and using them as campaign advertisements on Google. (RELATED: EXCLUSIVE: Harris Campaign, Google Could Face Lawsuit After Fake News Headline Scheme)
“Gavin Newsom is pretending that he’s trying to curtail disinformation, but in reality the Democrats are the worst perpetrators of spreading disinformation,” Mr. Reagan said. “They spread the Russian collusion hoax. They said that Hunter Biden laptop was Russian disinformation. They said that January 6 was an armed insurrection which police officers died. He spread so many lies, and then he signed these idiotic bills which are going to have a chilling effect on free speech and are going to pressure social media companies into chilling free speech,” he continued. “These are very obvious violations of the First Amendment, and this is my livelihood, this is how I make money.”
Experts argue the laws are overreaching, and that there are already laws in place to combat potential crimes.
“Lying in politics isn’t a new phenomenon, neither is manipulated media,” Terr said. “In the past we’ve adapted by becoming more media literate and less credulous. We shouldn’t assume that AI presents some unprecedented threat to democracy that calls for immediate regulations beyond the legal safeguards we already have in place to protect against things like fraud and defamation.”
Assemblywoman Dixon pointed out that we already have too many laws. “There are existing fraud related defamation laws. Campaign material. I think that’s already covered. I’m not a lawyer, but that’s what lawyers tell me. So I think the laws are unnecessary. Two more unnecessary laws out of thousands.”
Frank echoed the sentiments, noting that it’s “just very trendy to complain about artificial intelligence rather than the methods that people have been using for decades.”
Terr noted that there has already been a groundswell of public opposition to many deepfake videos circulating online. He argued the solution to deepfakes and manipulated content is more free speech, not less.
“That’s counter speech in action that shows that we can still identify and expose falsehoods when they arise. And as long as counter speech can still be an effective remedy, we shouldn’t, the government shouldn’t be rushing headlong into regulation that can do collateral damage to America’s First Amendment rights,” Terr concluded.