from the well-that-was-fast dept
Well, things sure move fast in this world of AI regulations. Just last week, we noted that California Governor Gavin Newsom signed a pretty obviously unconstitutional set of laws regarding the use of deepfake imagery around “election communications.” Then, just hours later, he was sued for it.
This week, federal judge John Mendez has already put one law on hold, AB 2839*, noting that it seems quite clearly to be unconstitutional. Oftentimes, these kinds of rulings on preliminary injunctions will talk about “likelihood of success” and highlight how it will probably be found unconstitutional if it goes through the full legal process.
However, here, Judge Mendez just said point blank that the law is unconstitutional.
As you’ll recall, Newsom made all this particularly easy for the plaintiff, Christopher Kohls, by directly stating that he was signing the law in an attempt to force Elon Musk and ExTwitter to remove a parody video that Kohls had created.
The court cites the recent Supreme Court Moody rulings as enabling it to find that state laws targeting online speech violate the First Amendment. In response, California had argued that the law only covered unprotected “false” speech. Except, of course, it’s only a very narrow set of false speech that falls outside of First Amendment protections, and this law is hardly narrowly tailored to focus on just that speech… as Newsom himself confirmed in claiming that the parody video was “illegal” under the law.
The judge isn’t buying California’s argument at all:
Thus, it’s no surprise that this law, which clearly impacts speech, must pass strict scrutiny if it’s to be found to be constitutional. This law and strict scrutiny are in different zip codes. The court finds that it is not narrowly tailored. Indeed, the Court rightly notes that any attempt to regulate political speech is particularly fraught and must be very clearly narrowly tailored, which this law was not:
Separately, the court finds that the “compelled disclosure” of manipulated images is also unconstitutional, as it is unduly burdensome compelled speech:
The conclusion is clear: yes, the concern about deepfakes may be real, but you don’t get to just outlaw them under the First Amendment.
This is a good, clean, and clear ruling on a law that was shockingly unconstitutional. We can agree that deepfakes are something to be worried about. And we can even agree that Kohls’ brand of “humorous” deepfakes are not funny or compelling. But the First Amendment says that he should be free to make them, and California cannot outlaw such political speech.
I imagine that California Attorney General Rob Bonta will appeal this decision, just like he’s appealed multiple other decisions in recent years over unconstitutional First Amendment-violating laws from the California Assembly. But it sure would be nice if, rather than wasting our taxpayer money, he focused on educating both Newsom and the California legislature how the First Amendment works.
If he’d like to set up a “First Amendment 101 CLE,” I know some folks who could help.
- You may recall that the lawsuit is also challenging AB 2655. However, that law doesn’t go into effect for a while, so the immediate focus was on 2839, which went into effect immediately.
Filed Under: 1st amendment, ab 2655, ab 2839, ai, california, christopher kohls, deepfakes, gavin newsom, parody, rob bonta