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
What does America need for the next 4 years: beta males, banal generalizations, weak leadership, open borders, reckless spending, forever wars, and high crime; or alpha male strong leadership, secure borders, an end to international entanglements bankrupting this country (while making the elite more wealthy), a reduction in violent crime, and policies favorable to domestic manufacturing and the working man and woman?
That’s the stark choice this nation will be making for its own future over the next six weeks.
Jonathan: Whatever happens to Christopher Kohl’s (aka “Mr. Reagan) lawsuit against California, and Elon Musk’s endorsement of his AI generated attack on Kamala Harris, it’s not going to help DJT’s chances of being re-elected. It’s a bit late for that because DJT continues to tank in the polls (more on that in another comment). And now more bad news for DJT. Some of the top US economists and fund managers think Harris will win and they believe she will be better for the economy.
But speaking of Elon Musk did you see the latest news. Elon has thrown in the towel in Brazil. Must be a big disappointment for you. The guy you thought would put “free speech” ahead of profits. Business Insider had a headline yesterday titled “Elon Musk abandons his fight with Brazil”. When Musk’s X got banned in Brazil for supporting the attempted coup by Jair Bolsonaro and refusing to appoint a legal rep in the country, Elon pledged to fight the ban because “principle matters more than profit”, he said at the time. In response Brazil’s SC imposed fines of $1 million per day on Starlink, Musk’s satellite provider. That got Musk’s attention and he has now capitulated and agreed to abide by court orders. Why? Because Musk’s obstinacy was wrecking financial havoc on what for him was an important profit center.
Elon mistakenly thought that as the wealthiest person person on the planet and as a “free speech” absolutist (his version) he could ignore the laws of other countries. Elon learned the hard way that “free speech” has its limitations–especially when you violate court orders. And the lesson for you is that your the champion of “free speech” turns out to be just another greedy business man who is willing to sacrifice his “free speech” when it affects his bottom line!
LOL. Praise to the authoritarian dictator of Brazil willing to fine his citizens for the audaciousness of looking at a web page of a rich guy.
The left, like you, fears anti-propaganda because they/you have nothing the people want so they better accept your/their lies OR ELSE.
Boring dennis being boring again.
Dennis
This is beyond cruel and inhumane. The World Court has been notified of your continued torture methods. When is Harris going to do an in-depth interview on her failed policies of the last four years snd her failed policies for the next four years? Where is our sharp as a tack 81M votes dementia patient President? I read he almost started WW3 last week over Ukraine with his wanted supply of long range weapons to Zelensky. Do you have any views on those important topics?
🤮🤮🤮
It only took 25 words to get to Donald Trump.
Word.
Typical Newsom using the cousin of “sue and settle”. He will treat the law as enforceable to stop democrat enemies, knowing it will be years before SCOTUS rules (if there still is one) and tell him he is FOS.
Doesn’t he know his party appointed Harris over him with no deep fakes used. It was just a “personnel swap”, Gav! .. chill. Nothing personal, LoL
* Free speech is directed by the morality of the population. If the culture is moral the speech is truthful. If the culture is immoral speech will be lies and half truths.
It’s in the Constitution because you cannot be prosecuted for speech. The morality comes from you. Larry Flynt is a case of an immoral person and those who love his press exercising their freedom. If it were a moral culture flynt would not sell so many mags nor would pedo porn be so prevalent among other immoralities.
The only certainty of any restraint on speech is perjury.
Is this a “deep fake?”
https://youtu.be/3N-B0_OKkeg
Yes, but the people believe it
Too boring for deepfake.
The Supreme Court somehow cannot find the maximal freedom of individuals and severe limitations and restrictions on government in the Constitution.
The Supreme Court has never visited Article 1, Section 8, with comprehension.
Freedom of the press is absolute.
No legislation denying the freedom of the press is constitutional.
Injured parties may sue in civil court for defamation and prove damages.
Americans have the right and freedom to be free of most government per the Constitution and Bill of Rights.
Newsom has no power to compel the production or purchase of electric vehicles or any commercial service or product or to set prices and wages or to deny freedom, free enterprise, free markets, the right to private property, etc., to Americans.
Just like Lincoln, Newsom and the communists (liberals, progressives, socialists, democrats, RINOs, AINOs) cannot exist without denying one or more constitutional rights, freedoms, privileges, and immunities.
The Supreme Court failed in its sworn-oath duty to support the Constitution in 1860 when Lincoln denied not-prohibited and fully constitutional secession—reprehensible pour-over British slavery must have been abrogated through constitutional legislation and existing immigration law enforced.
American freedom persisted for merely 71 years due to the abject failure of the Supreme Court.
Paradoxically, the Supreme Court presided over the “fundamental transformation of the United States” from its Constitution and Bill of Rights to the Communist Manifesto circa 1860.
Right, it’s only your (a cultures) good will, common sense and morality that restrains free speech. Do you understand that at all?
Given that NY gives credence to 31 genders, how many characterizations will there be to define a thought, picture or video ?
Certainly makes blind dates worrisome.
Remember way back when KJP was telling the nation that the Republicans were using DEEP FAKES in order to make Biden appear senile? Then the nation (the morons that weren’t already aware of Biden’s senility) got to see him up close and it was ballgame over.
Guys like George Clooney didn’t say a peep about Biden’s senility for a few weeks after his fund raiser but once the debate happened all of a sudden Clooney demands he resign.
We definitely need to issue a recall for the Clooney v1.0 , and bring it in for reprogramming.
I think a few good hard hits on the CPU would cause for a much needed reboot.
The root problem is the magnitude of the ignorance and culpable stupidity put on display by most of the American public today. When the Babylon Bee has difficulty surpassing the ludicrousness of true events when attempting to spoof those events with satiric headlines, satire is essentially dead. It was murdered by the US public education system.
I like freedom of speech for many reasons, one of which is we know where people stand. For example this rapper has reaped tremendous benefits from being born and raised in America, but he outright hates our country, as does his American audience who cheered at his “F—k America” declaration in that liberal city of Seattle.
https://www.foxnews.com/us/macklemore-decalres-f-america-cheers-seattle-concert-benefiting-un-agency-alleged-hamas-ties
* demonstration of the morality of the culture. Utterly immoral.
Wut???
Lead us not into temptation…
The issue(s) of concern IMO with the government regulating AI are, first; who can trust this government, or anyone else’s government for that matter, to regulate AI in a sound (and honest), ultimately beneficial manner to the public and not as a means of ultimately achieving autocracy or political monopoly? A variation of the question oft posed as to “whom” is it that gets to decide what is disinformation and/or misinformation?
And I suppose there is to come, The AI Wars. “My AI’s better than your AI, my AI’s better than yours…”
At the moment the State of California certainly, nay the entire Federal Government does not seem capable of undertaking much of anything successfully, where claims of such vague successes arise only from those responsible for the massive failures and otherwise keep busy staring into their magic mirror.
Can anyone remember back to a time when the government has undertaken to regulate something (anything really), that; (1), worked as intended or was actually needed in the first place, and did not result in unintended consequences which were worse then the original issue to begin with and (2), was not ultimately abused by government and did not result in some type of negative outcome to the citizens, even if the only harmful outcome was in completely wasting our tax dollars.
And secondly, though deep fake is a real concern as has been pointed out, are there not more pressing concerns with regards to AI that government bureaucrats should be busying themselves with apart from political meme’s and funnest redneck jokes?
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10030838/
https://autonomousweapons.org/
No matter what society is in view, the people trying to suppress speech are never the good guys.
Jonathan: Due to a snafu on your blog I couldn’t post a comment to your previous column “Indian University Cancels Conservative Journalist” so I will do it here.
I watched Rick Lowry’s interview with right-wing pundit Megyn Kelly–several times. My take away? I don’t think it was just a “verbal slip” by Lowry as you contend. He started to use the n-word (as in “nee”) and then quickly switched to “migrants” (as in “my”). I think that was intentional because the two words are pronounced quite differently. Kelly never brought that up in the interview so I think she knew what Lowry intended to convey because she shares his views.
The Q is why Lowry chose Indiana State University for his planned speech? The “Hoosier” state has a long history of racism. The KKK came to prominence in Indiana politics after WWI. Indiana was infamous for its “sundown towns”. Founded in 1851 the state constitution barred people of color from settling in the state. Racist views are still prevalent in the state today. Last year a white woman attacked an Asian American student at Indiana University in Bloomington–stabbing her with a knife 12 times on a public bus. The attacker said she did that so there would be “one less enemy”. The attacker will be sentenced in December (see ABC News report, 9/20/24). Asian American students at IU have expressed concern for their safety, especially after a series of shootings targeting Blacks, Jewish and Asian people in Indiana. So I think Lowry chose ISU to promote his own version of white nationalism that he thinks will get resonance with the people of Indiana–to promote racial divisions in the state.
And there was a reason Lowry went on Megyn Kelly’s podcast. They both support DJT and his campaign of racism against Blacks, immigrants and the LGBTQ+ community. When Taylor endorsed Harris/Walz and the support for transgender protections Kelly said this: “I’m allowed to criticize Taylor Swift, and I don’t give a f**k who gets upset. This is disgusting. If she wants to vote Harris-Walz, she can do it all she wants. But to say the reason she is doing it because of Tim Walz’s stand on LGBTQ? F you you Taylor Swift”.
So, in the end, I think ISU had good reasons to cancel Lowry’s speech–that would simply try to promote more racial divisions and hatred with the university community and around the state. That’s not “free speech” but a license to promote violence!
That’s it, I’m notifying the UN. You refuse to stop employing cruel and unusual torture techniques on this site. S/
You watched an deep fake actually. The interview was altered.
Indiana is no more racist than NY or CA, it simply has the examples that confirm your biases.
ISU canceled because the truth hurts what ISU wants to pretend to be the truth.
MAGA is not racist, it is anti-anti-racist, which is the opposite of racist.
Try trolling again tomorrow better, but yes, here is your attention-needing response.
Dear Prof Turley,
Humor is only funny if it’s true. The ‘good natured side of truth’. There is no such thing as AI ‘parody’.
The ‘secret source of Humor itself is not joy but sorrow’.
*according to Twain, there is no humor in heaven. .. but I’m not so sure.
“There is no such thing as AI ‘parody’.”
In my view, “AI” is both a parody of itself, and of that which it pretends to emulate.
Twain also stated, do you think they would allow us to vote if it really mattered? This was evidenced in 2016 Democratic primary with Bernie Sanders, Trump in 2020, and now again in the Democratic primary with Harris.
Was it created or processed in Viterbi vernacular.
Is it Anthropogenic Intelligence (AI) or Artificial Intelligence (AI), that is the question before the court. It depends on what the definition of “is” is.
“Is it Anthropogenic Intelligence (AI) or Artificial Intelligence (AI), ”
The acronym “AI” is certainly subject to interpretation. If you are referring to the non-corporeal variety, mine is “Artificial Idiocy”. I think that “Artificial Imbecility” might be slightly more accurate, but that is likely one syllable too many for anyone who actually takes the “discipline” of “AI” seriously.
Regulating deep fakes may be valid. With the evolution of graphics and AI, it will be much harder to tell what is real and what is not. That can lead to conspiracy theories “becoming true” for those who don’t know the difference, just as many can’t tell the difference between fact and opinion.
Technology is progressing faster than the law can keep up. For example, can anyone sue for defamation against AI?
Will the person subject to a deep fake smear be able to prove that it is not true? The regulation of AI and deep fake technology is becoming increasingly urgent. Just as we mandate the labeling of advertising on social media to distinguish it from organic content, we must also consider legislating to address the potential misuse of AI and deep fake technology. These measures are essential to protect against misinformation and uphold the integrity of digital content.
Requiring content to be labeled as deep fake or AI-generated may be necessary. How would that differ from requiring disclaimers about certain products not being tested or approved by the FDA?
Is MSNBC CNN ABC FOX under any obligation to assure their broadcast is not lying against the opposition party? Why would this be any different than editing a sound bite while spreading lies?
Go to our editing manager, Ms. Helen Waite, if you have issue with the idea, go to Helen Waite.
Lampooning politicians has long been a part of their rite of passage in America. Besides, their reputations can hardly be impaired more than what they have done to them themselves. Let’s be good sports about it and have some fun.
Here’s one for Trump:
https://x.com/TheKiffness/status/1834585071875158502
Here’s one for Harris:
https://x.com/daltonsuttonio/status/1836249357466607757
O heck no. People are DEAD and DYING because of this bunk. It’s evil and it’s being done willfully.
Jay Leno won’t do political jokes anymore, he said. He most likely has a conscience.
As a creator of digital imagery for our family business,and as a 50+year degreed art historian, I am curious to see a legal separation of definitions between a satirical cartoon drawn by someone such as Ramirez and an AI generated image creating the same satirical message. Because Ramirez expresses is concept with pen and ink does that make his image/message less dangerous? This is all about more weaponization of the law to benefit the democrats.
“Deep Fakes?”
The democrats would have you believe that men can have babies, that it is not the handmaiden of the Wall St-CCP cabal, that you need another C19 vax shot, that rampant mass migration benefits anyone except the labor-exploiting (and kiddie diddler) class, and that it is not the warmonger party.
Who in the democrat party is allowing those deep fake lies to propagate?
Face it, telling lies is not what worries your political masters, telling the truth is.
…and action like newsom’s, anything designed to give them control over speech, does nothing but help them cloak the truths they don’t want.
Newsom is not only ignorant, he’s immoral.
Bravo
WHILE WE’RE AT IT , old TV shows and movies have ALL been altered and are ALL deep fakes. The left left has destroyed everything . Alfred Hitchcock movies aren’t recognizable they’re so wrecked. Hitchcock liked blondes.
It’s truly disgusting fare. Bravo to the left for the bonfire. The point has been proved.
You have to know that California politicians will claim all images that embarrass them are fakes. By the time it gets sorted out, the “fake” but real image, will no longer be newsworthy or important. Does anyone think Governor Newsom would not have claimed that of the photo of him and his cohorts having diner at the French Laundry during the covid lockdowns was faked and should be removed from all media sources?