Constitutional Law, Free Speech, Torts

California Sued Over New “Deepfake” Law

California has triggered the first lawsuit over its controversial new laws that require social media companies to censor fake images created by artificial intelligence, known as deepfakes as well as barring the posting of images. A video creator is suing the State of California after his use of a parody of Vice President Kamala Harris was banned. The law raises serious and novel constitutional questions under the First Amendment.

Gov. Gavin Newsom signed A.B. 2839, expanding the time period that bars the knowing posting of deceptive AI-generated or manipulated content about the election. He also signed A.B. 2655, requiring social media companies to remove or label deceptive or digitally altered AI-generated content within 72 hours of a complaint. A third bill, A.B. 2355,  requires election advertisements to disclose whether they use AI-generated or manipulated content.

The American Civil Liberties Union of California, Foundation for Individual Rights and Expression (FIRE), the California News Publishers Association and the California Broadcasters Association opposed the legislation on first amendment grounds.

Elon Musk recently reposted the image of Christopher Kohls, who he defended as fighting for that “absolute Constitutional right to lampoon politicians he believes should not be elected.”

Kohls objected that the new law requires a new font size for the labeling that would fill up the entire screen of his video.

In the complaint below, Kohls noted “[w]hile the obviously far-fetched and over-the-top content of the video make its satirical nature clear, Plaintiff entitled the video ‘Kamala Harris Campaign Ad PARODY.'”

AB 2389 covers “deepfakes,” when “[a] candidate for any federal, state, or local elected office in California portrayed as doing or saying something that the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate.”

The exceptions for satire, parody, and news reporting only apply when they are accompanied by a disclaimer. The law is vague and could be used to cover a wide array of political speech.

It is not clear what defines satire or parody under the exception. Likewise, “materially deceptive content,” is defined as “audio or visual media that is digitally created or modified, and that includes, but is not limited to, deepfakes and the output of chatbots, such that it would falsely appear to a reasonable person to be an authentic record of the content depicted in the media.”

The Kohls complaint argues that the law flips the burden to creators to establish a defense.

One of the more interesting legal issues is how the law defines “malice.” The legislators lifted the definition from New York Times v. Sullivan on defamation to define the element as the statute requires “malice.” This term does not require any particular ill-intent, but instead applies a definition of “knowing the materially deceptive content was false or with a reckless disregard for the truth.”

That is the long-standing standard for public officials and public figures subject to the higher standard of defamation. However, it is not clear that it will suffice for a law with potential criminal liability  and a law with sweeping limits on political speech.

Opinion and satire are generally exempted from defamation actions. Satire can sometimes be litigated as a matter of “false light,” but the standard can become blurred. The intent is clearly to create a false impression of the speaker in making fun of a figure like Harris. Drawing lines between honest and malicious satire is often difficult.

Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.

For example, in Gill v. Curtis Publ’g Co., 239 P.2d 630 (Cal. 1952), the court considered a “Ladies Home Journal” article that was highly critical of couples who claimed to be cases of “love at first sight.” The article suggested that such impulses were more sexual than serious. The magazine included a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple was unaware that the photo was used and never consented to its inclusion in the magazine. They prevailed in an action for false light given the suggestion that they were one of these sexualized, “wrong” attractions.

In 1967, the Supreme Court handed down Time, Inc. v. Hill, which held that a family suing Life Magazine for false light must shoulder the burden of the actual malice standard under New York Times v. Sullivan. Justice William Brennan wrote that the majority opinion held that states cannot judge in favor of plaintiffs “to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or reckless disregard of the truth.”

This line is equally difficult under the tort’s standard for the commercial appropriation of use or likeness.

Parody and satire can constitute appropriation of names or likenesses (called the right to publicity). The courts, including the Ninth Circuit, have made a distinctly unfunny mess of such cases. Past tort cases generally have favored celebrities and resulted in rulings like White v. Samsung, a perfectly ludicrous ruling in which Vanna White successfully sued over the use of a robot with a blonde wig turning cards as the appropriation of her name or likeness. It appears no blonde being — robotic or human — may turn cards on a fake game show.

There is also the interesting question of when disclaimers (which are often upheld) ruin the creative message. The complaint argues:

“Disclaimers tend to spoil the joke and initialize the audience. This is why Kohls chooses to announce his parody videos from the title, allowing the entire real estate of the video itself to resemble the sorts of political ads he lampoons. The humor comes from the juxtaposition of over-the-top statements by the AI generated ‘narrator,’ contrasted with the seemingly earnest style of the video as if it were a genuine campaign ad.”

The complaint below has eight counts from (facial and applied) challenges under the First Amendment to due process claims under the Fourteenth Amendment.

Here is the complaint: Kohls v. Bonta

159 thoughts on “California Sued Over New “Deepfake” Law”

  1. So, does Donald Trump have a valid claim against Harris, Walz, and various Democrat PACs that continue to claim that Trump supports and will institute Project 2025 despite the fact that Trump has repeatedly disavowed his knowledge and support of this document and having publicly stated, repeatedly, that Project 2025 is not part of his campaign? What about TV, radio, and print ads that knowingly falsely claim that Trump supports Project 2025? Must those political advertisements in California be accompanied by a disclaimer?

        1. The context of the comment was in regard to the two factions facing off over the historical significance of keeping civil war monuments. This has been beaten more times than Anthony Weiner…

  2. the democrat presidential campaign is just a “deep fake” in their trying to pass of this incompetent buffoon as presidential material; so why are they so against this?

    1. I would say as long as these types of fakes are notated as such just as the disclaimers are on films as fiction or noted as based upon true events, names are changed to protect the innocent, just like we’ve used for years they are good to go. If they’re presented as true and are not, the creators and those that allow them are liable to fraud and defamation should they be proven. Simple
      Democrats only worry about fraud when it is the truth being used against them.

      1. and it is a hopeful sign that many who used to be democrats are beginning to notice the fraud in their party and leaving.

      2. It’s like fake food known as fud. It must be labeled for origin and contents. If the graphics are AI generated as origin then say so in the credits. Movies do have a cast of characters.

        Anyone can make it with a list of origins. As to using someone’s image? Copyright and patent yourself as the original. Follow with lawsuit.

      3. “If they’re presented as true and are not, the creators and those that allow them are liable to fraud and defamation should they be proven”

        I am OK with a civil proceeding determining that, after the fact. Prior restraint, which is the real objective of the California law, not so much.

      1. “the bait and switch candidate”

        I was told that she smelled like bait after Willie Brown switched her…

  3. Freedom of speech goes the other way. Creating a AI fake video of someone saying something that they did not say, is violating the victims rights to control their own message, for anyone watching would not know it was fake.
    The bigger problem is that all AI deepfake videos of real people without consent should be illegal. One video of a teacher saying something racist would ruin their career. That needs to be illegal. Freedom of speech is not absolute.

    1. Raaaaaaccccist, myssssssoginist, hooooooomophobe, the never ending anchor of political correctness imposed on free speech by the leftist minions. These videos are presented as memes and putforth as fakes depicting the hypocrisy of these lying frauds and fools. If a person created a fake and put it forth as real as you present, that would constitute fraud and would cost the perpetrator dearly in civil court. It’s exactly like Hillary Clinton’s Russian collusion dossier, what are your thoughts on that, subversion of a duly elected president? Bottom line is that it is NOT governments job ot lawful duty to regulate what I say or what I believe. Only an idiot that can’t think for themselves would believe it is.

      1. People can be racists, or homophobes or misogynistic because of freedom. What you cannot do is withhold resources of any kind due to those conditions of belief and thought.

    2. “One video of a teacher saying something racist would ruin their career.” LOL. Biden said racist crap his entire career and became the president.

      kamala is mouthing the words of the marxist-authoritarian-warmongers, do you think she really knows what she’s saying – nope they are putting words into her mouth, just like someone can alter a video to put words into their mouths. Deal with it.

  4. This is astounding, even by the usual standards of gaslighting.

    We’ve had a deep-fake POTUS controlled by a deep-state politburo for the last four years, much to the discomfort of many of us. Should Joe Biden be arrested in California for faking a presidency?

    We’ve had a deep-fake media, covering up the crimes of one President’s entire family while trying to frame another President repeatedly. Should Rachel Madcow be arrested in California for impersonating a journalist?

    We’ve had deep-fake citizens, flooding across the southern border for years. Should they be arrested in California for faking a voting block?

    The Democrat Party is wholly and completely corrupt, and the entire government of California should be arrested for complicity.

    1. “The Democrat Party is wholly and completely corrupt, ”

      That is why everyone should make it their business to vote. High numbers of votes for Trump will help Trump while President and inform the Democrat Party that its members need to tear it down and then rebuild it. The Party is wholly corrupt, unlike what we used to call “The Party” when TV was black and white.

        1. I think there are some dead Bay of Pigs patriots that would disagree with you on his treachery.

            1. A different world then my friend, the fear of the wind of Red terror blowing our way was real, as was the fear of nuclear war with USSR. He paid the ultimate price, he gets the hall pass. Now Teddy, that’s a turd in the punch bowl.

          2. Traveler-exactly. He allowed it to go on and then pulled the air cover at the most critical time. Not exactly a Profile in Courage.

        1. Traveler, you are correct. I just got this oldie-but-goodie in my email. It is worthwhile listening to understand the trajectory of our country and how simple the solutions are. It also proves that it isn’t only the Democrats, and it isn’t only present history.

          https://www.youtube.com/watch?v=mKhfR8WC4Eo

          It is worthwhile for everyone to listen carefully.

      3. ” tear it down and then rebuild it”?

        More like shred it and flush it at this point.

    2. Good point. As to the shadow government? It’s a deep fake with the attributes of a 3rd world thug.

  7. Don’t any of these idiots get angry that a bunch of unelected bureaucrats are running our country and dictating who will sit in our highest office? Can’t they see through the extensive character assassinations on Trump by each side as a sitting President and the subversion unleashed on him for what it was and is? This isn’t a personality contest, it’s a policy contest. THEY decided over half of America’s voters were wrong and inserted their own agenda. They have now done it again with Kamal Harris, removed 81 million votes sharp as a tack Joe Biden and inserted an idiot. I am amazed there is not an American uprising from both left and right.
    Pray for our Nation !

    1. You read my mind, Traveler.

      I think we, at some point, might have to come to grips with an unthinkable reality. When 45% of your country’s population is dedicated to your enslavement to their suicidal delusions, there is little prospect that that can end well. The only remaining question is whether to slowly submit or call their bluff and go to war.

      I hope some miracle rescues us from this dilemma. I have seen miracles happen in politics (Florida), but they’re rare.

    2. “Don’t any of these idiots get angry that a bunch of unelected bureaucrats are running our country and dictating who will sit in our highest office?”

      Mostly, no. They just want to et the election over with so they can get back to their really important priorities: reality TV, streaming porn, etc.

  8. IRS agents endorse Harris …
    That should say it all, if you think California, Philadelphia, DC, Maryland are good States with common sense governance and reflective of what you want America to be, by all means vote for Joy Kamala Harris.

    1. Traveler,
      Of course they do.
      If Trump wins and forms a group to weed out redundancy, waste and abuse in the government, many of them will be out of a job.
      I look at the failed state of California, the failed cities like San Fran, Chicago, Baltimore, New Orleans etc. That is what Democrats want to bring to the rest of America.

      1. You and I understand that, I find it unimaginable that any American voter can’t see it and after living in this country would buy into their utopian dream of serfdom. These are the same groups of people that took America from heroes from the tyranny of WW I I to a corrupt world wide cabal of corporate oligarchs using America to their own makings. Why do you suppose everyone hates us worldwide now, and is loyal only to our checkbook?

      2. I have thought on this very matter as government employment is pushing 50% of the market place. I would say that downsizing government while removing illegal interlopers (or those designated as legal) in a mass deportation move would open up a multitude of job opportunities. Only problem is that these government employees transitioning would have to learn how to produce for their paychecks. A balanced approach to keep America working and achieving the dream, it would cut the tax burden massively and open up a new economy bubble. Movement away from growth and development to a sustainable future for the benefit of American citizens is the path forward.

        1. “Only problem is that these government employees transitioning would have to learn how to produce for their paychecks.”

          In conjunction with nearly half the workforce made up of government employees, that is serious potential problem. That makes one for one Hell of a lot of votes. How many of them would vote for a politician who wants to winnow their ranks and/or get them to work harder, vs how many would vote to continue their sinecures, while blind to the reality of the results from more of the same? I’ve seen proposals in the past about requiring Federal employees to relinquish voting rights during their term of employment. Obviously that would require an amendment, and be an extremely tough sell, but in theory, I’m not sure I don’t agree with it.

  9. Are they really that weak they have to pass a law like this? Nevermind. I answered my own question . . .

  10. Long ago I consulted for a Japanese chemical company — huge worldwide operations. Each plant dominated by Asian workers and engineers. Over six or so years I had many conversations with these people and often enough about politics. A very common theme was their wonderment over our freedom of speech — that we could safely mock, satirize, even complain to near purple rage about our elected officials. It was utterly unlike the world they lived in, or had come from. They were in awe. In my view they could not have complimented America more.

  11. When will California snd Newdom sign a bill that polticians adhere to these same standards and prosecute as necessary
    Amendment.

    Gov. Gavin Newsom signed A.B. 2839, expanding the time period that bars the knowing posting of deceptive AI-generated or manipulated content about the election. He also signed A.B. 2655, requiring social media companies to remove or label deceptive or digitally altered AI-generated content within 72 hours of a complaint. A third bill, A.B. 2355, requires election advertisements to disclose whether they use AI-generated or manipulated content.

  13. I wonder if this law could be applied retrospectively. Probably not. Too bad. If it were then we could go back to July and reference KJP saying that all those pictures of Biden freezing and wondering about aimlessly and she described them as “cheap fakes” and which “did not happen” . Imagine all the criminal penalties that she all the other DNC minions and stellar beings could be subjected to by calling real videos “deep fakes”, “disinformation”, and “malinformation”. Obviously only hard time would suffice for these miscreants.
    Or was it just our “lying eyes” that had befuddled us as the befuddled president did his Parkinsonism like dance on the stage for posterity.

  14. much needed action.
    Newsom & Co. did nothing when kathy griffin revealed her severed head politik.
    I don’t recall any lawsuits (either) after the horrid televised smears of ‘feckless c!#…, and Stephen Colbert parodies or other insults were lobbed.

  15. Well, it’s good news and bad news. The good news is The View will be taken off the air. The bad news is the nightly news will be two minutes in duration. Hmm maybe that’s good news ,too, considering Muir and Davis.

    Lots of cases to read cited in this article.

    In other news, Hezbollah has launched 8000 bombs into israel since Oct. 7.

    Happy Sunday!

    1. “The good news… The bad news…”

      The MSM nightly news remains distinguishable from The View? Haven’t watched the former for years; never watched the latter, but judging from others whose opinions I respect, I’m surprised to learn that.

  16. When “[a] candidate for any federal, state, or local elected office in California portrayed as doing or saying something that the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate”….

    Don’t politicians do this (otherwise known as “lying”) to each other, verbally, every single day? So it’s OK for them but not the serfs, using what are essentially political cartoons?

    1. Sure, and it spills into stand up comedy and other print material. It’s DOD.

      yawohl, comrade serf !

  17. AB 2389 covers “deepfakes,” when “[a] candidate for any federal, state, or local elected office in California portrayed as doing or saying something that the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate.”
    I guess that would pretty much remove all political content from the airways since that is the essence of a political campaign. I wonder if this would extend to context or the malicious removal of significant words in a sentence of paragraph which totally flips the meaning and aim of a statement. You really don’t even have to have use AI to do that because it’s already done on an almost daily basis. I guess we could say that was the “intent of the law” and try to apply it there.
    Lastly how would we deal with the mainstream media which does an obvious parody each and every nite of what they consider to be a biased and accurate statement of the news. That is an obvious crime.

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