A federal judge has thrown out two laws signed last year by California Gov. Gavin Newsom (D) that banned so-called “deepfake” videos of politicians, calling the legislation an unconstitutional form of censorship.
As Breitbart News reported at the time, Newsom signed the laws, AB 2655 and AB 2839, in response to Elon Musk sharing a spoof campaign ad that made fun of then-Democratic presidential candidate Kamala Harris.
Musk responded at the time that he had consulted with “Professor Suggon Deeznutz” and had been told that parody is still “legal in America.”
The satirical Babylon Bee also responded to Newsom, with a fake campaign video:
Breitbart News explained:
The two bills, AB 2655 and AB 2839, are related. The first requires “large online platforms” to “block the posting of materially deceptive content related to elections in California, during specified periods before and after an election.”
It also bars “materially deceptive content,” which is defined as “audio or visual media that is digitally created or modified, and that includes, but is not limited to, deepfakes.” That could, in theory, include a broad range of political speech — such as Kamala Harris’s false claims that former President Donald Trump once praised neo-Nazis, a claim known as the “very fine people hoax.”
The second bill targets deepfakes, which show “[a] candidate for any federal, state, or local elected office in California portrayed as doing or saying something that the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate.” There are exceptions for satire, parody, and news reporting, as long as the “deepfake” is accompanied by a disclaimer.
The Babylon Bee, among others, subsequently challenged the law in federal court.
As the California Globe and RedState reported this weekend, a federal judge was not convinced by the laws’ carveouts, and found that both pieces of legislation championed by Newsom violated fundamental free speech rights.
Senior Judge John Mendez of the Eastern District of California, a George W. Bush appointee, wrote:
The Court finds that AB 2839 discriminates based on content, viewpoint, and speaker and targets constitutionally protected speech.
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Rather than targeting content that procures tangible harms or materially benefits a speaker, AB 2839 attempts to stifle speech before it occurs or actually harms anyone as long as it is “reasonably likely” to do so and it allows almost anyone to act as a censorship czar.
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AB 2839’s expansive terms capture even satire or parody videos since the law does not require that the parody in fact does fool or mislead someone.
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Moreover, the State’s contention that parody and satire are excepted is unpersuasive because AB 2839 … imposes a disclaimer requirement on parody or satire that is independently suspect. … Put simply, a mandatory disclaimer for parody or satire would kill the joke.
Judge Mendez also struck down AB 2655, which required online platforms to regulate “deepfakes,” as the Washington Times noted, saying that it violated the companies’ immunity under the Communications Decency Act.
It was the latest loss in court for Newsom, who likes to portray his opponents, notably President Donald Trump, as enemies of freedom, yet has frequently been found to violate fundamental constitutional rights with his own policies, such as banning many forms of religious worship during the coronavirus pandemic.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of The Zionist Conspiracy Wants You, now available on Amazon. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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