Kamala Harris, Satire, and Where the Wild Things Are
[1.] California recently enacted a new law banning election-related “materially deceptive content” 120 days before and 60 days after an election. “Materially deceptive content” is defined as
audio or visual media that is intentionally digitally created or [significantly] modified, which includes, but is not limited to, deepfakes, such that the content would falsely appear to a reasonable person to be an authentic record of the content depicted in the media.
One question is: How will this affect satirical videos mocking candidates, such as this one:
This is amazing ????
pic.twitter.com/KpnBKGUUwn— Elon Musk (@elonmusk) July 26, 2024
California Gov. Gavin Newsom says the bill will make the video illegal:
I just signed a bill to make this illegal in the state of California.
You can no longer knowingly distribute an ad or other election communications that contain materially deceptive content — including deepfakes. https://t.co/VU4b8RBf6N
— Gavin Newsom (@GavinNewsom) September 17, 2024
A newly filed lawsuit by the creator of the ad, Kohls v. Bonta, seeks a preliminary injunction against enforcing the law with respect to the ad. Who is likely to win? More broadly, how does the law treat satire?
[2.] It turns out that the legal system has had to deal with this question often. A defendant in a libel case might argue that his speech wasn’t a factual accusation but satire. A defendant who is prosecuted for impersonation might argue that his speech was jocular and not serious. A defendant who is prosecuted for making a threat might likewise argue that his speech was a joke.
As a general matter, the law deals with such claims by concluding that, if a reasonable person would understand the statement as a joke, then the elements of the offense aren’t present: the statement isn’t a false factual assertion (for libel or impersonation purposes) and isn’t a true threat (for threat purposes). There doesn’t need to be some special satire defense set forth in the statute or the common law rule; rather, the requirement that a reasonable person perceive the statement is an inherent part of what makes the statement punishable in the first place. The California materially deceptive content statute reflects that, when it says:
“Materially deceptive content” means audio or visual media that is intentionally digitally created or modified, which includes, but is not limited to, deepfakes, such that the content would falsely appear to a reasonable person to be an authentic record of the content depicted in the media.
If a reasonable person would see the media as a satirical alteration, rather than as straight-up reporting, then it’s not “materially deceptive.” And though the California statute says,
this section does not apply to an advertisement or other election communication containing materially deceptive content that constitutes satire or parody if the communication includes a disclosure stating “This has been manipulated for purposes of satire or parody” [in a size that is easily readable by the average viewer and no smaller than the largest font size of other text appearing in the visual media]
this on its face only applies to material that is materially deceptive in the first place. If a reasonable person would perceive the statement as satire, then the disclosure isn’t required, because there is no “materially deceptive content” in the first place.
My favorite illustration of this comes in New Times, Inc. v. Isaacks (Tex. 2004). Before the article in that case had been written, there was a real arrest (and 5-day juvenile detention) of a 13-year-old for writing—in response to a teacher’s assignment to write a “scary story” for Halloween—”a tale that described shooting a teacher and two classmates,” a tale for which he “received a grade of 100, plus extra credit for reading it aloud in class.” The Dallas Observer, an alt-weekly, wrote a follow-up article, which used the names of the same judge and prosecutor involved in the 13-year-old’s case:
Entitled “Stop the madness,” the fictitious article described the arrest and detention of “diminutive 6 year-old” Cindy Bradley, who was purportedly jailed for writing a book report about “cannibalism, fanaticism, and disorderly conduct” in Maurice Sendak’s classic children’s book, Where the Wild Things Are. Adjacent to the article was a picture of a smiling child holding a stuffed animal and bearing the caption, “Do they make handcuffs this small? Be afraid of this little girl.” The article states that Bradley was arrested “without incident during ‘story time'” at Ponder Elementary School and attributes fabricated words and conduct to Judge Darlene Whitten, District Attorney Bruce Issacks, and others.
Other false quotes and bogus factual assertions were strewn throughout the piece. Judge Whitten was said to have ordered Bradley detained for ten days at the Denton County Juvenile Detention Center while prosecutors contemplated whether to file charges. Whitten purportedly said: “Any implication of violence in a school situation, even if it was just contained in a first grader’s book report, is reason enough for panic and
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