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. The primary law is utterly unenforceable as it stands – a platform has 72 hours to label or take down a ‘post’ – a term undefined by the law itself, but subject to previously established definitions that do not preclude copied ‘instances’ of the primary content. The platform could quite easily set a timer on the reported post, withdraw it at exactly 72:00:00, and then re-post the original content to start a new clock. It’s Leftist Hygiene Theater and nothing more…

  2. The law is clumsy in going after a technical method of deceitful infowarfare — there is no need to call out the technical methodology used, only premeditated intent to deceive.

    As far as parody and satire, the CA law is crystal clear in its allowance for these forms of humor – the content creator only has to add a disclaimer to the content to be protected. What’s the problem with that approach? It’s a bit clumsy, but not the least bit vague about how satirists may operate using AI tools with legal protection.

  3. Votes weren’t stolen but killed by Trump (nber.org/papers/w30512)
    Since he believes in rigging, maybe he staged his shootings himself.

    1. Believes in rigging…

      Yeah that’d be hard to do with the voter rolls chock full of names from the cemeteries, illegal aliens, half the 50 states who ask for less identification to cast a vote than the local marihoochie dispensary; the handy dandy xerox machine, or electronic devices secured by who, maintained by who, connected to who, and a gazillion hackers from hostile Nation States around the globe to kids in Mom’s basement that have successfully hacked into our infrastructure grid over and over again for years now.

      The most secure election in history!

    2. Dr. Kevorkian self help clinic
      666 Eternal Dam Drive…
      It’s right next to the abortion clinic.

  4. I took another trip to the grocery store and the bill certainly was not a “deep fake.” Eating out for two people who are trying to get the cheapest thing on the menu still comes to 40-50 dollars. My house and car insurance has gone up significantly in the past three years. Getting an appointment with a specialist now takes 2-6 months. That is not a deep fake. One need only spend a couple of minutes on traditional network “news” programs to realize that they are not often reporting factually. Any third grader knows that the President of the United States is clueless and he is surrounded by those who protect him and gaslight anyone who would dare state the obvious. The Vice President stated that there are zero U.S. troops in any combat zone throughout the whole world. Yet there are hundreds in Syria, Thousands in Iraq, and thousands of sailers and in the Middle East. Crickets……No fact checking. Just subversion, avoidance and gaslighting.

    George Orwell had an uncanny ability to predict human behavior in a shockingly accurate way. The hard left, elite and the corporate media machine have turned the former President into Emmanuel Goldstein. “In the course of daily life in Oceania, Goldstein is always the subject of the Two Minutes Hate, a daily programme of propaganda that begins at 11:00 hours; the telescreen shows an over-sized image of Emmanuel Goldstein for the assembled citizens of Oceania to subject to loud insults and contempt. To prolong and deepen the anger of the spectators, the telescreen then shows images of Goldstein walking among the parading soldiers of the current enemy of Oceania—either Eurasia or Eastasia. The Two Minutes Hate programme shows Goldstein as both an ideological enemy of the Ingsoc régime of The Party and a traitor aiding the national enemy of Oceania.”

  5. Speaking of deepfakes. How about DJT, about the biggest deepfake that has ever existed.

    The woman who first aired the pet-eating slurs has admitted they are baseless. The city’s Republican mayor, Rob Rue, has stressed that “your pets are safe”. Ohio’s Republican governor, Mike DeWine, has dismissed the claims. A grieving father, Nathan Clark, asked Mr Trump and others to stop exploiting his 11-year-old child’s death in a bus crash involving a Haitian immigrant to stoke hatred in the town. The lies have led to an emergency order being issued in Springfield. When Mr Trump said he was planning a visit there, Mr Rue, backed by Mr DeWine, said it would be better if he stayed away.

    Do I expect djt or JD to act like descent human beings? Nope. They are complete utter A HOLES.

    1. The ability to counter false information with more speech has been the mantra forever. The difficulty today is that the major media outlets are limiting the “more speech” to counter false speech if that false speech is part of their advocacy journalism and narrative against conservatives. As we know, the more false statements are repeated, the more likely they are believed to be the truth.

      1. What you say is sort of true. It’s not so much believing it’s true as it is a wish to make it true. It’s a form of belief based in lies.

      1. The mutilation and torture of animals has been reported in many places throughout the country. Despite that, the extremist left media as good propagandists would, continue to proffer their lies. And in reality they know that lying about it, even when their caught lying about it, is entirely their point. It generates a false distraction to the actual and more important issue of criminal gangs of illegal aliens that are far more dangerous than the home grown variety, continue to take over the extreme leftist run cities. Their ultimate goal of destroying America is what is important to them.

    3. Even if it were false, Trump has every right to make up that claim to smear the Democrats to even things up for the Trump-Russia lie, no? What’s good for the goose!!!!

  6. * If you’re conservative move to red states and elect tried and true governors. Vice versa for blue states etc. The lesson learned is the feds are just too big in bureaucrats. Huge.

    Freedom is a condition. It is only truthful and moral if the people are such. Professor Turley, it’s pitiful.

  7. We need to dance to the Harris Walz!
    Kamala has been prosecutor, A.G. and senator. As prosecutor she did not tolerate violence.

    1. You do know BLM and Antifa burned down America while Kamala was a Senator right David? You are aware Walz failed to bring in the National Guard while they burned Minnesota right?

    2. You do know that she was a DEFENDANT’S prosecutor, a new type of animal on the legal scene. You do know that she supported bailing out violent rioters, right? You do know that she countenanced an open border, right? You do know that she STATED ON VIDEO that the government can go into your home to see if you are being a good boy with your gun, right?

    3. Kamala Harris is nothing but a communist party girl, and ho of Willy Brown.

      Kamala Harris won no money, won no votes, dropped out the earliest, and won no primaries.

      Kamala Harris won Willy Brown’s —-.

  8. * I’ll let my friends in India know to be more careful when disguising identity origin on those campaign deep fakes, Guvnah.

    Kamala’s Trump debate was before enactment? Shux.

    1. * it only affects AI material. Must be really important to control the net.

      Computer needs can bypass anything.

  9. IRS agents support Kamala.

    Is that endorsement supposed to help her or sink her?

    Intelligence agents who told us Hunter’s laptop was phony are now telling us Kamala is genuine.

    Is that a 4 dimensional chess move to destroy her?

    1. Her supporters do not pay income taxes (hedge fund crooks and dead beats), so that’s an endorsement

  10. Kamala is so bad I can hardly tell the difference between a deep fake and the ‘real’ thing assuming there is a real Kamala that we are allowed to see.

    Masks off Kamala would look like Stalin and Waltz like Mao.

    What a mess.

    1. The disturbing thing is that 48% of American voters are so mentally deranged that they’re actually planning to vote for her.

      1. True. Thank the most sophisticated propaganda and brain washing machine ever created. Herr Goebbels would be so envious.

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