California’s new deep fake laws and the First Amendment

The California Legislature and Gov. Gavin Newsom are to be commended for enacting two new laws designed to deal with the problem of "deep fakes," digitally created images and sound that falsely convey a person's actions or words. Artificial intelligence now allows for the creation of video and audio that appear genuine, but are complete fakes. Deep fakes undermine the very essence of freedom of speech, as well as harming those falsely depicted and those deceived by the images.

Assembly Bill 730 prohibits a person or entity, within 60 days of an election, from knowingly or recklessly distributing deceptive audio or visual media of a candidate with the intent to injure the candidate's reputation or to deceive a voter into voting for or against the candidate, unless the media includes a disclosure stating that the media has been manipulated. The law defines "deceptive audio or visual media" to mean an image or audio or video recording that has been intentionally manipulated in such a manner that it would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of a candidate.

Assembly Bill 602 prohibits creating by digital imagery sexually explicit audiovisual works that, without consent, depict an identifiable person engaged in sexual activity. This legislation addresses a problem of major importance to performers whose personas are exploited without their consent in sexually explicit audiovisual works through the use of increasingly sophisticated digital imagery. Also, revenge pornography is created in this way. No one should be shown as engaging in sexual activity without his or her consent. A recent study found that 96% of the more than 14,000 deep fake videos identified online were pornographic in nature. Of these pornographic deep fakes, the subjects of all of them were women, often popular actresses and musicians.

Any liability for speech raises First Amendment concerns. But both bills address this. For example, AB 730 exempts the news media from any possible liability, as well as exempting videos for satire or parody. Potentially deceptive video or audio will also be allowed if it includes a disclaimer noting that it's fake.

AB 602 also has several significant exemptions for content disclosed: (a) in "reporting unlawful activity," in "legal proceedings," and in the exercise of "law enforcement duties"; (b) in a matter of "legitimate public concern"; (c) in a work of "political or newsworthy value, or similar work"; and (d) for purposes of "commentary or criticism, or to the extent the disclosure is otherwise protected by the California Constitution or the United States Constitution."

The Supreme Court often has explained that freedom of speech is protected as a fundamental right so as to further the marketplace of ideas. The premise of the First Amendment is that rather than have the government determine what ideas can be said, it is better for all views to be capable of expression. But deep fakes add nothing to the marketplace of ideas and indeed detract from it by presenting false information in a manner that is totally believable. Depicting a person engaged in sexual activity that never occurred or showing a political candidate saying things that never were uttered offers nothing useful to public discourse.

Denials cannot cure the problem. A visual depiction of a person naked and engaging in sexual activity is a profound affront to dignity even if the person announces that he or she was not actually filmed. Similarly, having a candidate seem to express words that never were said risks deceiving voters and deciding elections on the basis of misinformation. There is no assurance that those who heard the false statements will hear the denials or that will be enough to cure the harms created by the deep fakes.

Although these two bills would regulate speech, they would not violate the First Amendment. False speech, at times, is protected, but often the government is allowed to prohibit it without running afoul of the Constitution. For example, lying in court under oath -- perjury -- is not protected by the First Amendment even though it is speech. The Supreme Court has been clear that false and deceptive advertising has no constitutional protection.

Most importantly, the court has said that speech which is defamatory of public officials and public figures has no First Amendment protection if the speaker knows the statements are false or acts with reckless disregard of the truth. The court has explained that the importance of preventing wrongful harm to reputation and of protecting the marketplace of ideas justifies the liability for the false speech.

The new laws use exactly this legal standard. For example, AB 730, which prohibits deep fakes in the political realm, applies only where the false images were knowingly or recklessly created and disseminated. AB 602 has exceptions for a matter of "legitimate public concern" or a work of "political or newsworthy value, or similar work."

The technology for deep fakes is advancing quickly. The law must keep up and deal with this serious problem. By enacting these bills, California is providing a model for Congress and for state legislatures all over the country.

I am a staunch defender of freedom of speech and often have done so in these pages. But the harms of deep fakes are so great and the benefits so small, the new laws are desirable and constitutional.