Deepfake Crackdowns Threaten Free Speech
AI-generated media today is astonishingly high-quality and produces images and audio that are nearly indistinguishable from reality, and video isn’t far behind. But with this progress comes a new wave of legal and ethical battles.
Lawmakers are alarmed by deepfakes—synthetic media that mimic reality—fearing their potential to destroy reputations, especially in high-stakes election campaigns. Yet some of the new state deepfake laws raise serious First Amendment concerns.
While “political misinformation” has become a focus of the Democratic Party in the past few years, Republicans also object to AI-assisted media deployed opportunistically to harm their candidates’ reputations. Deepfake fears have sparked rare bipartisan action, with nearly one-third of states passing laws to regulate their use during elections.
Most laws targeting deepfakes stick to civil penalties, but at least Texas and Minnesota take it further, criminalizing synthetic media intended to “influence an election.” Texas’ law resembles a criminal defamation statute and violations can mean a year in jail.
Minnesota’s law is even harsher: simply “disseminating” a deepfake—resharing on social media might suffice—could land repeat offenders in prison for up to five years. Further, a government official or nominee guilty of disseminating a deepfake can be removed from office.
From vague terms (“deepfake,” “disseminate”) to harsh criminal penalties, these laws clash with First Amendment protections, especially since they fail to exempt parodies or satire.Â
Fortunately, in September, a state appellate court declared Texas’ law facially unconstitutional. Regarding the overbreadth of the Texas law, the state court said, “Given that influencing elections is the essence of political speech, it is difficult to imagine what speech would not be included under the statute.”
But even the state laws with civil liability have many of the same problems. It’s worth examining California’s new deepfake law, AB 28
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