Judge finds new California election deepfake ban unconstitutional

A federal court judge has put a preliminary injunction over a two-week-old California law that effectively bans election deepfakes. 

The law — AB 2839 — allowed any person to sue for damages over AI deepfakes if the perpetrator’s post resembles a political candidate within 120 days of an election and up to 60 days after. 

Judge John A. Mendez said artificial intelligence and deepfakes pose significant risks but said the law is “unconstitutional” as it likely violates the First Amendment.

“The Court finds that AB 2839 is also unconstitutional under California’s free speech provision.” 

The decision comes from a case involving Christopher Kohls, known as “Mr Reagan” on X, who created a controversial AI-altered campaign video mocking United States Vice President Kamala Harris in July that was later shared by X’s executive chairman Elon Musk.

Kamala Harris Campaign Ad PARODY pic.twitter.com/5lBxvyTZ3o

— Mr Reagan 🇺🇸 (@MrReaganUSA) July 26, 2024

A lawyer representing Kohls filed a lawsuit against California’s Attorney General Rob Bonta and Secretary of State Shirley N. Weber to block the new California law a day after California Governor Gavin Newsom signed it into law on Sept. 17. 

The law allows California judges to order distributors of AI deepfakes to take them down or potentially face monetary penalties.

Mendez said that Kohls is “likely to succeed on his state constitutional claim,” and granted the motion for a preliminary injunction on Oct. 2.

“Most of AB 2839 acts as a hammer instead of a scalpel, serving as a blunt tool that hinders humorous expression and unconstitutionally stifles the free and unfettered exchange of ideas which is so vital to American democratic debate.” 

Mendez further agreed with Kohls’ lawyer that Kohls’ AI deepfake of Harris was merely “satire” that should be protected by the First Amendment.

“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.”

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Tesla CEO Elon Musk, a free speech activist, viewed the court ruling as a win.

AB 2839 is one of several new AI-related laws that has hit Newsom’s desk in recent months.

Newsom recently vetoed the Safe and Secure Innovation for Frontier Artificial Intelligence Models Act — SB 1047 — on Sept. 30, which proposed mandatory safety testing of AI models.

Newsom said that “while well-intentioned,” SB 1047 could place unnecessary restrictions on emerging AI companies in California.

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