A federal judge has barred California officials from enforcing key provisions of a new law designed to regulate “deepfake” images and videos generated through artificial intelligence that could cause confusion or spread misinformation during election campaigns.
On Oct. 2, Judge John Mendez of the Eastern District of California handed down the order approving a preliminary injunction to stop enforcement of most of Assembly Bill 2839, which prohibits advertisements and other election communications that use AI in a way that could deceive the public.
The decision was a legal victory for plaintiff Chris Kohls, who is known as “Mr Reagan” on X, formerly Twitter. Kohls sued state Attorney General Rob Bonta and Secretary of State Shirley Weber last month, arguing that the new law violates his First Amendment right to create digital content about political figures.
Among his creations was an AI-generated parody of Democratic presidential candidate Kamala Harris that was retweeted by billionaire and owner of X Corp., Elon Musk. AB 2839 allows anyone who sees Kohl’s videos to sue him for damages during a time frame that runs 120 days before an election and 60 days afterward, according to his lawsuit.
“AB 2839 does not pass constitutional scrutiny because the law does not use the least restrictive means available for advancing the state’s interest here,” Mendez said in his decision. “As plaintiffs persuasively argue, counter speech is a less restrictive alternative to prohibiting videos such as those posted by (the) plaintiff, no matter how offensive or inappropriate someone may find them.”
The California law was passed by the state's Democratic lawmakers, who claimed to be concerned that purposefully deceptive content driven by AI technology could confuse voters during the runup to elections and amount to election interference. But Mendez rejected the state’s arguments.
“Supreme Court precedent illuminates that 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,” the judge said.
Adam Schulman, senior attorney with the Hamilton Lincoln Law Institute, which is representing the plaintiff, said it was unclear whether the state would appeal the ruling.
“The decision well explained citizens’ fundamental right to engage in political speech and that states may not use fear of technological advancement as an invitation to curtail that speech,“ Schulman said in an email to the Southern California Record.
The judge’s injunction will remain in place until Mendez rules on a potential permanent injunction in the future or if he decides to vacate or modify his order – or if an appeals court later reverses or modifies the order, he said.
Mendez said there are options for those who are hurt or offended by AI-generated videos already on the books.
“Other statutory causes of action such as privacy torts, copyright infringement or defamation already provide recourse to public figures or private individuals whose reputations may be afflicted by artificially altered depictions peddled by satirists or opportunists on the internet,” he said in his decision.
The new law mandates that deceptive AI-generated content that is parody to must contain a disclaimer, but Kohls’ lawsuit argued that the cutout for satire was vague and impractical for content creators.