From today’s ruling by Judge John Mendez (ED California) Coles vs. Bonta:
Plaintiff Christopher Coles (also known as “Mr. Reagan”) is an individual who creates digital content about politicians. His videos contain demonstrably false information, including audio and visuals that have been heavily edited or digitally generated using artificial intelligence. The plaintiff’s video is considered by him to be a parody or satire. The California Legislature enacted AB 2839 in response to videos posted by plaintiffs parodying presidential candidate Kamala Harris and other AI-generated “deepfakes.” Plaintiffs say AB 2839 would allow any political candidate, election official, secretary of state, or anyone else to participate. People who watch his AI-generated videos can sue him for damages and injunctive relief during the election period, starting 120 days before the election and ending 60 days after the election.
AB 2839 will not pass constitutional review because the law does not use the most restrictive means available to advance the state’s interests. As the plaintiffs persuasively argue, counterspeech is less restrictive than banning videos like the one the plaintiffs posted, no matter how offensive or inappropriate someone finds them. It is an alternative. “Counter-speech, not speech restrictions, is the proven buffer and panacea, especially when it comes to political speech.”
The court first held that AB 2839 does not fall within the existing defamation exception to First Amendment protections and is not subject to any other doctrine that would definitively reduce protections against false statements in political campaigns. concluded.
Defendants are trying to analogize AB 2839 to restrictions on defamatory speech, but the law itself does not use the word “defamation” and its own definition allows it to exceed legal standards for defamation. contains content that is “reasonably” false or materially deceptive. Likely to damage reputation or At face value, the law does not require actual harm, but instead sanctions digitally manipulated content that has a “substantial likelihood” of amorphous “damaging electoral prospects.” , AB 2839 not only punishes potentially defamatory statements; “of a candidate or elected official.
Additionally, all “deepfakes” or “misrepresented content”[s] “A reasonable person would recognize that the content depicted in the media is an authentic record” is clearly encapsulated in the definition of “grossly deceptive content” used throughout the Act. , automatically subject to civil liability. Therefore, even artificially manipulated content, which does not constitute defamation but could possibly affect a candidate’s electoral prospects, will be cleared under this law. , subject to civil liability.
The law also prohibits the use of “election officials,” “voting machines, ballots, voting sites, or other property or equipment” that “is reasonably likely to undermine confidence” in the outcome of an election. It also penalizes such altered content that depicts. These provisions lack objective indicators and are difficult to verify, as well as a large number of “can do” actions.[ne] or [words that can be] difference[id]“Things that have the potential to damage public officials’ “election prospects” or “undermine trust” in elections.
Almost any digitally modified content can be considered harmful if left in the hands of any individual on the Internet. For example, AI-generated approximate numbers about voter turnout could be considered false to reasonably undermine confidence in election results under this law. On the other hand, many “harmful” depictions, when shown to a wide variety of individuals, may not ultimately affect electoral prospects or undermine confidence in elections at all. . As the plaintiffs persuasively point out, AB 2839 “relies on a variety of subjective terminology and clumsy wording.” men’s rare”, which has the effect of engaging a vast amount of political and constitutionally protected speech.
Defendants further argue that AB 2839 is a possible exception recognized in patent applications. America vs. Alvarez (2012) for lies that involve “some kind of … legally permissible harm.” However, legally recognized damages are: alvarez The reference does not include “obvious harm to election integrity.” Defendants argue that AB 2839 imposes penalties. Instead, a potentially unprotected lie alvarez The award was limited to existing causes of action, such as “invasion of privacy and costs of vexatious litigation.” “False statements made to government officials in communications related to official business.” and lies that are “essential to the criminal act,” which can include “falsely representing that you are speaking on behalf of the government or … impersonating a government official.” 567 United States, 719-722 (2012). AB 2839 does not imply any legally permissible harm. alvarez And that would lead to broader areas of unconstitutional suppression of false but protected speech.
Even though AB 2839 only targets knowing falsehoods that cause tangible harm, these falsehoods and other false statements are exactly the type of speech protected by the First Amendment. in New York Times vs. Sullivanthe Supreme Court held that even intentional lies about the government (those told with “actual malice”) are protected by the Constitution. The Supreme Court further held that “prosecutions for defamation against the government” (including civil liability for such defamation) are “ [no] Establishing a position within the American legal system. See also Rosenblatt v. Baer (1966) (arguing that “the Constitution does not permit any form of “prosecution of defamation against the government””). These same principles that protect the public’s right to criticize governments and government officials also apply in the new technological era, where media can be digitally altered. Civil penalties for criticism of the government, such as those allowed by AB 2839, have no place in our system of governance….
Accordingly, the court evaluated the law under strict scrutiny as a content-based speech restriction and concluded that it was likely to fail that test.
Under close scrutiny, states must use “the least restrictive means available to advance.” [its] The First Amendment to the Constitution does not permit measures to restrict speech when the state can solve the problem by enacting or enforcing laws that do not infringe on speech. The remedy that should be applied to avoid evil in the educational process is not forced silence, but more speaking.
Supreme Court precedent has shown that while well-founded fears of a digitally manipulated media environment may be justified, that fear may lead legislators to engage in First Amendment-protected criticism, parody, and satire. It has been made clear that this does not give permission to freely interfere with the long-standing traditions of Japan. YouTube videos, Facebook posts, and Protected. Other statutory causes of action, such as privacy torts, copyright infringement, and defamation, may be brought against the public whose reputation may have been harmed by artificially altered depictions spread by satirists and opportunists on the Internet. It has already given people and individuals the right to claim compensation. Additionally, AB 2839, through its language, proposes other less restrictive means of regulating manipulated content within the law itself. The law’s safe harbor carve-out, which seeks to implement labeling requirements, could pass constitutional convention if tailored narrowly enough.
In addition to interfering with protected speech, there are more pressing reasons to be skeptical of laws aimed at regulating political speech, such as AB 2839. To quote Justice Breyer and Justice Alito: alvarez,”[t]There is a broad area here in which any attempt by the state to punish purportedly false speech poses a serious and unacceptable risk of suppressing true speech. In analyzing regulations regarding speech,[t]His point is not that there is no truth or falsehood in these areas or that it is always impossible to ascertain the truth, but rather that “the state is the arbiter of truth in certain circumstances.” It’s dangerous to admit that.”
The political context is one particularly “dangerous” for governments to be the arbiters of truth. AB 2839 attempts to sterilize election content, making it “public.”[] “It is the door through which the state uses its power for political ends.” ” When political speech and electoral politics are at issue, the First Amendment allows courts to control speech. It is almost explicitly about allowing speech to flourish, rather than supporting state attempts to suppress it.
After weighing the broad categories of election-related content that AB 2839 prohibits, including both humorous and non-humorous content, the court found that AB 2839’s legitimate purge would not be effective against a significant number of petitions that are clearly unconstitutional, such as in this case. It was recognized that it pales in comparison. Therefore, the court found that the plaintiffs were likely to succeed on their First Amendment facial challenges.
The court also held that disclosure requirements for videos that are parody or satire but are substantially deceptive are also unconstitutional.
For parody or satirical videos, AB 2839 requires a disclaimer to be broadcast for the entire duration of the video in text that is at least the largest font size used in the video. In Plaintiff Coles’ case, this requirement renders his video nearly invisible and obstructs the entire frame. The obstructive nature of this requirement is alarming, as parody and satire have conveyed creative and important messages in American politics… In such non-commercial contexts, AB 2839’s disclosure requirements force parodists and satirists to “speak a particular message” that they would not otherwise speak, and they do not use coercive methods that dilute the message. It corresponds to a speech.
Even if some of the artificially altered content is subject to a lower standard for commercial speech, or “strict scrutiny” rather than the strict scrutiny the defendants claim.[,] AB 2839 failed to meet the “burden of proving that the notice…is not unreasonable or unduly burdensome.” NIFLA v. Becerra (2018), or claim that their disclosure is “rigorously calibrated” according to standards articulated for the disclosure of political speech. Smith vs. Herzer (9th Circuit 2024). AB 2839’s size requirements for disclosure statements in this case and many others, which would take up the entire screen, almost certainly “drown out” the message a parody or satirical video is trying to convey. is not rational. Therefore, AB 2839’s disclosure requirements are unduly burdensome, not narrowly tailored, and, therefore, similarly unconstitutional.
Coles is represented by Adam Shulman and Ted Frank (Hamilton Lincoln Law Institute). For more information on satire questions, see this post.
