Judge Declares California's Recent Deepfake Ban Unconstitutional

A Federal Court Judge's Preliminary Injunction

A preliminary injunction against a two-week-old California law that effectively bans election-related deepfakes has been issued by a federal court judge. The law, known as AB 2839, permitted any individual to sue for damages over AI deepfakes within 120 days of an election and up to 60 days after if the offender's post bore a resemblance to a political candidate. Judge John A. Mendez acknowledged the significant risks posed by artificial intelligence and deepfakes, but declared the law "unconstitutional" as it likely infringed upon the First Amendment. He stated, “The Court finds that AB 2839 is also unconstitutional under California’s free speech provision.”

The Case of Christopher Kohls

This decision resulted from a case involving Christopher Kohls, also known as “Mr Reagan” online. Kohls produced a contentious AI-altered campaign video in July that satirized United States Vice President Kamala Harris, which was later shared by Elon Musk, the executive chairman of X. A lawsuit against California Attorney General Rob Bonta and Secretary of State Shirley N. Weber was filed by a lawyer representing Kohls. The lawsuit aimed to block the new law a day after California Governor Gavin Newsom signed it into law on Sept. 17.

Implications of the Law

The law empowered California judges to order the distributors of AI deepfakes to remove them or potentially face financial penalties. Judge Mendez stated that Kohls is “likely to succeed on his state constitutional claim” and granted the motion for a preliminary injunction on Oct. 2. According to Mendez, “Most of AB 2839 acts as a hammer instead of a scalpel, serving as a blunt tool that hinders humorous expression and unconstitutionally stifles the free and unfettered exchange of ideas which is so vital to American democratic debate.”

Judge Mendez's Agreement with Kohls' Lawyer

Judge Mendez concurred with Kohls' lawyer that the AI deepfake of Harris was merely “satire” that should be protected by the First Amendment. He stated, “While a well-founded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment.” Elon Musk, CEO of Tesla, viewed the court ruling as a victory.

Other AI-Related Laws

AB 2839 is one of several new AI-related laws that Governor Newsom has recently encountered. On Sept. 30, Newsom vetoed the Safe and Secure Innovation for Frontier Artificial Intelligence Models Act — SB 1047 — which proposed mandatory safety testing of AI models. Newsom stated that “while well-intentioned,” SB 1047 could place unnecessary restrictions on emerging AI companies in California.

Bottom Line

The court's decision to deem California's recent deepfake ban as unconstitutional has sparked a significant debate. While the law aimed to protect the integrity of elections, it also raised questions about the balance between free speech and the potential misuse of technology. What are your thoughts on this matter? Do you think the law infringes upon the First Amendment, or is it a necessary measure to combat the potential misuse of AI technology? Share your thoughts and this article with your friends. Don't forget to sign up for the Daily Briefing, which is available every day at 6pm.