I previously criticized the California law, called the Defending Democracy from Deepfake Deception Act of 2024, as flagrantly unconstitutional. Signed by California Gov. Gavin Newsom, the law would have gutted free speech protections for political parodies. Now, in Kohls v. Bonta, Senior U.S. District Judge John Mendez has rebuked the state for a law that he concluded had to be rejected in its entirety as flawed to its core: “No parts of this statute are severable because the whole statute is preempted. No parts of A.B. 2655 can be salvaged.”
An example of the challengers was described by the court:
“Plaintiff Christopher Kohls (aka “Mr. Reagan”) is an individual who creates digital content about political figures. His videos contain demonstrably false information that include sounds or visuals that are significantly edited or digitally generated using artificial intelligence …. Plaintiff’s videos are considered by him to be parody or satire. In response to videos posted by Plaintiff parodying presidential candidate Kamala Harris and other AI generated “deepfakes,” the California legislature enacted AB 2839. AB 2839, according to Plaintiff, would allow any political candidate, election official, the Secretary of State, and everyone who sees his AI-generated videos to sue him for damages and injunctive relief during an election period which runs 120 days before an election to 60 days after an election….”
Social media companies like X Corp. challenged Assembly Bill 2655, which requires certain platforms to remove “materially deceptive content” about political candidates, elections officials, and elected officers.
Challengers argued that federal law gives service providers immunity from suits stemming from content created by a third party. They also argued that the law violated the First Amendment.
Mendez agreed with the companies that the law “punishes [social media companies] for doing something that they’re clearly protected by [the Communications Decency Act] from doing.”
Attorney Johannes Widmalm-Delphonse, representing plaintiffs the Babylon Bee and Kelly Chang Rickert, argued the required disclaimer under the law constituted compelled speech because it changes what the content creator wants to say: “A disclaimer kills the joke.”
The court agreed:
AB 2839 does not pass constitutional scrutiny because the law does not use the least restrictive means available for advancing the State’s interest here. As Plaintiffs persuasively argue, counter speech is a less restrictive alternative to prohibiting videos such as those posted by Plaintiff, no matter how offensive or inappropriate someone may find them. “‘Especially as to political speech, counter speech is the tried and true buffer and elixir,’ not speech restriction.” …
It is a powerful statement in support of free speech. The opinion also further separates this country from the anti-free speech measures coming out of the European Union.
What is interesting is how California pulled out the same old saw used by many in the anti-free speech community in claiming that common law defamation shows that speech can be curtailed. I have previously addressed that flimsy argument, including in my book The Indispensable Right: Free Speech in an Age of Rage. The court wrote:
While Defendants attempt to analogize AB 2839 to a restriction on defamatory statements, the statute itself does not use the word “defamation” and by its own definition, extends beyond the legal standard for defamation to include any false or materially deceptive content that is “reasonably likely” to harm the “reputation or electoral prospects of a candidate.” At face value, AB 2839 does much more than punish potential defamatory statements since the statute does not require actual harm and sanctions any digitally manipulated content that is “reasonably likely” to “harm” the amorphous “electoral prospects” of a candidate or elected official.
Moreover, all “deepfakes” or any content that “falsely appear[s] to a reasonable person to be an authentic record of the content depicted in the media” are automatically subject to civil liability because they are categorically encapsulated in the definition of “materially deceptive content” used throughout the statute. Thus, even artificially manipulated content that does not implicate reputational harm but could arguably affect a candidate’s electoral prospects is swept under this statute and subject to civil liability.
The statute also punishes such altered content that depicts an “elections official” or “voting machine, ballot, voting site, or other property or equipment” that is “reasonably likely” to falsely “undermine confidence” in the outcome of an election contest. On top of these provisions lacking any objective metric and being difficult to ascertain, there are many acts that can be “do[ne] or [words that can be] sa[id]” that could harm the “electoral prospects” of a public official or “undermine confidence” in an election
Almost any digitally altered content, when left up to an arbitrary individual on the internet, could be considered harmful. For example, AI-generated approximate numbers on voter turnout could be considered false content that reasonably undermines confidence in the outcome of an election under this statute. On the other hand, many “harmful” depictions when shown to a variety of individuals may not ultimately influence electoral prospects or undermine confidence in an election at all. As Plaintiff persuasively points out, AB 2839 “relies on various subjective terms and awkwardly-phrased mens rea,” which has the effect of implicating vast amounts of political and constitutionally protected speech.
Defendants further argue that AB 2839 falls into the possible exceptions recognized in U.S. v. Alvarez (2012) for lies that involve “some … legally cognizable harm.” However, the legally cognizable harms Alvarez mentions does not include the “tangible harms to electoral integrity” Defendants claim that AB 2839 penalizes. Instead, the potentially unprotected lies Alvarez cognized were limited to existing causes of action such as “invasion of privacy or the costs of vexatious litigation”; “false statements made to Government officials, in communications concerning official matters”; and lies that are “integral to criminal conduct,” a category that might include “falsely representing that one is speaking on behalf of the Government, or … impersonating a Government officer.” 567 U.S. at 719-722 (2012). AB 2839 implicates none of the legally cognizable harms recognized by Alvarez and thereby unconstitutionally suppresses broader areas of false but protected speech.
Even if AB 2839 were only targeted at knowing falsehoods that cause tangible harm, these falsehoods as well as other false statements are precisely the types of speech protected by the First Amendment. In New York Times v. Sullivan, the Supreme Court held that even deliberate lies (said with “actual malice”) about the government are constitutionally protected. The Supreme Court further articulated that “prosecutions for libel on government”—including civil liability for such libel—”have [no] place in the American system of jurisprudence.” See also Rosenblatt v. Baer (1966) (holding that “the Constitution does not tolerate in any form” “prosecutions for libel on government”). These same principles safeguarding the people’s right to criticize government and government officials apply even in the new technological age when media may be digitally altered: civil penalties for criticisms on the government like those sanctioned by AB 2839 have no place in our system of governance….
The law was struck down under the strict scrutiny standard, another expensive loss for California democrats who continue to pass impulse-buy legislation with impunity. It is only the latest assault on free speech from the left and it is unlikely to be the last.
Fortunately, there remain judges like Mendez who remained tightly tethered to our constitutional values:
In addition to encumbering protected speech, there is a more pressing reason to meet statutes that aim to regulate political speech, like AB 2839 does, with skepticism. To quote Justices Breyer and Alito in Alvarez, “[t]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech.” In analyzing regulations on speech, “[t]he point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth” in certain settings.
The political context is one such setting that would be especially “perilous” for the government to be an arbiter of truth in. AB 2839 attempts to sterilize electoral content and would “open[] the door for the state to use its power for political ends.” “Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.'” When political speech and electoral politics are at issue, the First Amendment has almost unequivocally dictated that Courts allow speech to flourish rather than uphold the State’s attempt to suffocate it.
Well said Judge Mendez and thank you.
My black neighbors like to dish-out shitty rap music at a billion decibels, but
they can’t take it when I blast the General Lee Dixie horn. It’s almost as if they
think they have more rights than I do.
“My black neighbors like to dish-out shitty rap music at a billion decibels, but
they can’t take it when I blast the General Lee Dixie horn. It’s almost as if they
think they have more rights than I do.”
Troll harder, nobody heard you the first time.
“There is a natural disgust in the minds of nearly all white people to the idea of indiscriminate amalgamation of the white and black races … A separation of the races is the only perfect preventive of amalgamation, but as an immediate separation is impossible, the next best thing is to keep them apart where they are not already together. If white and black people never get together in Kansas, they will never mix blood in Kansas …[Racial separation] must be effected by colonization [of the country’s blacks to a foreign land]. The enterprise is a difficult one [but] ‘where there is a will there is a way,’ and what colonization needs most is a hearty will. Will springs from the two elements of moral sense and self-interest. Let us be brought to believe it is morally right, and, at the same time, favorable to, or, at least, not against, our interest, to transfer the African to his native clime, and we shall find a way to do it, however great the task may be.”
– Abraham Lincoln, Springfield, Illinois, June 26, 1857
“June 26, 1857”
Didn’t something happen between 1857 and, say, 1865, that may have affected Abe’s views? Hmm.
Emphatically, yes!
You could say something completely changed Abraham Lincoln’s views and mind on the subject between June 26, 1857, and April 15, 1865.
I believe that glorious fundamental transformation had a title, which is memorialized to this day on the Seal of the Great State of Virginia—Sic Semper Tyrannis.
I could be wrong.
“The political context is one such setting that would be especially “perilous” for the government to be an arbiter of truth in. AB 2839 attempts to sterilize electoral content and would “open[] the door for the state to use its power for political ends.” “Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’” When political speech and electoral politics are at issue, the First Amendment has almost unequivocally dictated that Courts allow speech to flourish rather than uphold the State’s attempt to suffocate it.”
*******************************
Wow, a full-throated defense of the First Amendment by a California jurist! Somewhere, Cali Chief Justice Roger Traynor must be smiling.
Here’s the CJ making the same point IN 1974!
“In the area of public issues the Times case thus marks a new tolerance for misstatements, cracker-barrel views, and freewheeling language. Better the smog of error or eccentricity or zealotry that others are free to deplore or dissipate than a pall of black-letter law whose immutable and oppressive presence would impel people not only to watch for fatal flaws in the words of others but also to keep uneasy watch on their own words. Self-censorship, in the view of the Court, is as deadly as any other censorship to freedom.”
Now that’s great writing.
Free speech, including the freedom to lie, has many benefits over a censorship regime. One that is sometimes overlooked is that it is better to allow the lie so that people can answer it and demonstrate why it is a lie. It is more informative to be able to debate these reasons than to have big brother tell people what’s a lie and what’s truth. This idea is captured in the following passage of the opinion, which is stated in somewhat flowery language:
Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.
NotSoOld: While I entirely agree with you, and believe in the “counter-speech,” “more speech not enforced silence” alternative, I must admit that there is often collusive and intentional effort to hold back on derogatory or misleading election speech until just days before voting, -giving potential victims limited and rushed time to be cognizant of, prepare counter-speech, and get counter-speech out there to the public in time.
“there is often collusive and intentional effort to hold back on derogatory or misleading election speech until just days before voting, -giving potential victims limited and rushed time to be cognizant of, prepare counter-speech, and get counter-speech out there to the public in time.”
IMO the answer to that is to educate voters regarding that tactic, so that they may consider such timing to be a likely indicator of misrepresentation, or of outright falsehood. If we eliminate all campaign tactics that are designed to mislead voters, we might leave no permissible statement to a candidate beyond mentioning their name (facetious exaggeration for the sake of my point).
True (with regard to public education, especially at the high-school level, not just to voters). –And more emphasis and participation (as when I went to high school and early college years) in speech and debate curricula.
Notwithstanding, I think I remember a case somewhere, in some jurisdiction, where a requirement that AI-generated speech must be so identified in the actual messaging/speech (as a disclaimer) was shot down by the court.
—PLUS, the old adage about the “last man standing” –in this case, getting the last word in, -a cautionary tale of the one with the final message or response tactic carrying more weight if not responded/objected to–serves to be considered. I think of such attempts from our fellow commenter “George,” -maybe learned from or emulative of, George Stephanopoulos and Kristen Welker.
Sneak attack –good example and it happens everyday requiring an iron dome. Cluster bombs
WHAT! No pseudo-communist comments here yet!
Noone
(flagrantly unconstitutional. Signed by California Gov. Gavin Newsom)
And just what part of that phrase surprises anyone not indoctrinated in to the cult? The lack of respect for out constitution should be treated in America in the same manner as the French treat those who disrespect their war memorials: https://extra.ie/2025/08/07/news/cigarette-at-arc-de-triomphe-war-memorial
But I think the firing squad should be returned to service as a method of illustrating just how seriously we should revere our constitution. After all, if the French can get all fired up about some islamist lighting a cigarette at a memorial flame, I should think that Americans should respond much more vigorously towards those who would disrespect our constitution.
Perhaps you should change your name from Whimsical to Dreary, Miserable or Disconsolate Mama. How you make it through life is astonishing
Shush. MiseryLovesCompany (previously known as Anonymous) is tip toeing through the tulips again.
” is tip toeing through the tulips again.”
More like squatting…
“The only valid censorship of ideas is the right of people not to listen.”
-Tom Smothers
And, in this instance, the right of people not to watch.
“In response to videos posted by Plaintiff parodying presidential candidate Kamala Harris and other AI generated ‘deepfakes…'”
Hmm. How does one fake a phony? Does that make her more phony or less fake? The Democrats’ last two nominees were a fake POTUS and an empty pantsuit. The fakery started with the Democrats, so who are they to sit in judgement??
Diogenes,
Good question. Their real problem is most of their modern policies are just as phony or fake. I am still waiting for someone in the Democrat party to come forward, call out their own bad policies and lead the party back from the stupid and crazy to the sane and normal. Who do they have? Newsome who signed off on this ridiculous law?
They had two tolerable Senators, Manchin and Sinema. Now they’re down to Fetterman. The trend is not good.
“Now they’re down to Fetterman. ‘
And Fetterman seems to have some serious health issues…
*. Last comment. Freedom of speech is a white man’s idea. All white people are bad and everything they’ve ever done and made. The sum realization is to destroy the bad document.
People seem to not understand the underlying dem principle of white people are bad and the Constitution is bad.
Not my opinion but people do need to understand the dem principle and motivation.
Roger
“All white people are bad and everything they’ve ever done and made.”
That’s what Democrats say, but it doesn’t stop them from doing race swaps with white classics.
Good Ruling.
In the converse, say someone would produce a Deepfake of Kamala Harris in the positive light to better the Candidate’s image and popularity.
The Deepfake would remove the word-salad and replace it with speech that makes her sound as if she were a Genius. Further elements of the promotional deepfake would utilize an AI generated narrative that would also enhance the Candidate’s campaign.
Much of this type of production with Old-School technique was done with clever Editing. But today’s technology allows us to create the whole “image of the Candidate’s Campaign from scratch. AI engines do the work of the Campaign Manager.
The point is: Deepfake Campaign Mudslinging [negative] will continue, however Deepfake Campaign Subterfuge [positive] will lead to equally deceitful Elections to.
‘Election Integrity’ should be addressed by Law ‘To Tell The Truth’ as these new technological frontiers face Us.
“Accept no Other”
“‘Election Integrity’ should be addressed by Law ‘To Tell The Truth’ as these new technological frontiers face Us. ”
Not possible to do so in conformance with 1A, imo. There is nothing new here, as you sort of admitted. Video was developed and popularized by the movie industry. What is the business of that industry? Telling convincing lies. Now, the point then was to tell those convincing lies in order to make acknowledged fiction more entertaining, but a technology lacks ethics and morals, and is blind to context. So, ignore video content regarding any important factual subject that could be easily misrepresented. I do exactly that.
When do we START punishing elected officials, the mandarins, judges, etc who push this FASCISM!
This is how the California legislature spends their time and resources passing! It was obviously unconstitutional but Newscum still signs it! And he wants to be president and uphold the constitution. How do these socialist legislators keep getting re-elected?
To the left, meanings and definitions of words are infinitely malleable – at least when and as they use them. The Constitution says what they want it to – this week. Next week, when they want something else, it will say that.
“To the left, meanings and definitions of words are infinitely malleable – at least when and as they use them. ”
Predominantly, but (importantly) not solely to the left. I invested in a paper copy of Webster’s 2nd Unabridged International Dictionary so that I (and my family) may have an unalterable reference to the American language while our Republic was in (more-or-less) full flower. Yes, copies may be accessed on-line, but such copies may be altered with relative ease, and any future totalitarian regime might well restrict access to faithful copies. The damned thing is quite cumbersome to handle, but I’m happy to have it 🙂
Democrats and their “judges” are FASCISTS
Time to STOP them…by JAILING THEM!
Thank our founders for the Constitution and Justice Mendez for his cogent decision and incredible stand for free speech. This is a decision that should be posted on every courthouse door, sent to every governor and legislator in the USA (especially in California), and sent daily (by e-mail) to every member of the Parliament of the European Union. This is how a free society functions. It’s tough but if you don’t like the message then counter it with a better message. The message should quote all of the Europeans who brought forth the Enlightenment.
You may have misunderstood the article, it concerns a US legal issue, not European. Getting old has some advantages I suppose.
But the decision does have some good explanations about why it’s foolish for any government to make itself the arbiter of truth. So GEB’s idea has merit.
The sun orbits the earth.
“This is a decision that should be posted on every courthouse door, sent to every governor and legislator in the USA (especially in California), and sent daily (by e-mail) to every member of the Parliament of the European Union. ”
Unfortunately many of those you named (esp the Californicators) would likely hang it next to the copy of the U. S. Constitution in their bathrooms, to also be used as toilet paper.
A win for the 1stA and the Constitution!!
I must go back and reread it.
After watching primitive earth cultures via u tube they have one spigot of water and must fill jugs. With a rapid increase in communication these cultures will naturally advance and obtain more pipe. Soon there’ll be spigots inside every home. The power of freedom 1A. The short handled broom will be replaced by long handled brooms. Chairs and tables will be adopted and tanks of propane purchased. Such is the simple advancements made by 1A. Oh yes, fire will be put under flat rocks and not hot stones inside the bowls. 😏. Thong bikinis won’t catch on.
Leave it to dem/libs who can’t wait to gut free speech.
Notice how they are all for free-speech until they don’t like what you say.
I love you Judge John Mendez !!! There is hope.
Still thinking of you Mr Turley at the loss of your mom. In the midst of grief, the people, the love, the meals, the well-wishers, the cards, the hugs- end up all slowing and going away and leaves behind still deep grief so I hope even six months down the road you will continue to be remembered and prayed for as you are now. You are loved and respected, sir
The Supreme Court could rule that you can utter racial slurs willy-nilly without any consequences from anyone, but then the free press would have a big problem with this, because they don’t want you to be so free. They don’t think you should be so free to express yourself in certain ways that they don’t like.
The only Real Deep Fake is Gavin Hair Gel Newscum.
😂😂😂
I’m laughing because you’re laughing!
Text your vote for “Hillary” to 13737 by next Wednesday
Creekan
The new code for the Obama and HRC Russia gate whistle blower is # OICU812…🤣
Pleasantly surprised to see a California judge on the right side of history.
Many federal judges have slapped down California. As for California judges…
I always hate to follow up my own post, but this popped up on my google feed: https://www.gov.ca.gov/2025/08/07/governor-newsom-announces-judicial-appointments-8-7-25/
See the pics and draw your own conclusions.
Black people don’t respect my rights so why should I respect theirs?
“Black people don’t respect my rights so why should I respect theirs?”
Looks like the Media Matters checks are still clearing. Someone needs to tell Elon.
I see you don’t approve of this opinion and would probably like to see such opinions banned. Political correctness really is reverse-Nazism.
Your logic is flawed. The other anon made fun of the opinion, which is an appropriate response to stupidity in a free-speech system.
It’s the law.
Book ’em, Danno.
Huzzah!