Election Day 2024 is just over one month away and candidates all across the country are in the homestretch of their campaigns. Traditionally, this means candidates are working to amplify their message and generate enthusiasm that will get supporters to the polls. Today, it also means monitoring for and responding to AI (Artificial Intelligence)-generated “deep fakes” and other forms of online deception that could be used to disrupt elections and campaigns.
California has been leading the charge to address the potential harms of deep fakes and was the second state to adopt a labeling requirement when lawmakers passed legislation back in 2019. Today, 16 other states take a similar approach. However, two bills recently signed by Gov. Gavin Newsom go far beyond the traditional labeling policy that seeks to inform voters through increased transparency. Instead, Assembly Bill 2839 and AB 2655 would prevent Californians from being exposed to certain types of political speech in the first place.
To regulate election deep fakes and other “materially deceptive content,” lawmakers created a framework with two basic parts. First, AB 2839 institutes a general ban on the distribution of deceptive election content, and AB 2655 requires social media companies to remove the deceptive content when detected on their platforms. While both laws limit the restrictions to specific time periods around Election Day and include language exempting certain types of constitutionally protected speech – such as satire and parody – they remain problematic for a variety of reasons.
First and foremost, the laws unambiguously restrict political speech, with the state imposing the restriction directly in AB 2839 and indirectly through social media companies in AB 2655. While not every speech restriction violates the Constitution, these new California laws will likely be subject to the strict scrutiny standard, which places a significant burden on the state to justify the law’s existence. Courts will soon have an opportunity to weigh in as a lawsuit was filed in federal court shortly after Newsom signed the bills into law.
Should the laws be upheld, enforcing them will be a challenge. Under the new law, any recipient of materially deceptive content has the power to file a civil claim alleging a violation of AB 2839. With broad definitions for “materially deceptive content” and “recipient,” the new law opens the door to political gamesmanship between candidates and campaigns. It also shifts the burden of lawmaking to the judiciary, requiring the courts to fill in the details in a way that will not tread on First Amendment-protected speech such as parody or satire. The result will be a chilling of political speech in order to limit legal liability.
Similarly, AB 2655 requires social media companies to establish mechanisms for the public to report content for review under strict timelines. This will likely create so many submissions that platforms may start to err on the side of restricting speech and removing content in order to limit liability under California law.
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Finally, the content moderation required under AB 2655 is particularly concerning because it would allow the government to force social media companies to remove or label content it deems problematic – the exact type of censorship regime that the First Amendment was designed to prevent. Moreover, while AB 2655 is currently limited to election content, it’s no stretch to imagine the same principles being applied to deal with information about public health, education or any other topic in the future.
Overall, the rapid acceleration in California from labeling deep fakes to banning them and requiring social media companies to remove them, serves as a cautionary tale for further deep-fake regulations. While the California laws may ultimately fail in court, the impulse from lawmakers to push the envelope on controlling political speech is a bad one. Protecting voters from deception may be well intentioned, but a better approach to dealing with false information is to encourage more speech, not less.
Chris McIsaac is a fellow with the R Street Institute’s governance program.
