Newsom’s Unconstitutional AI Bills Draw First Amendment Lawsuit Within Minutes Of Signing

I do not understand why California Governor Gavin Newsom thinks he has to be the Democratic equivalent of Texas Governor Greg Abbott or Florida Governor Ron DeSantis, signing obviously unconstitutional laws for the sake of winning culture war arguments.

It’s really shameful. It’s cheap political pandering, while disrespecting the rights of everyone he’s supposed to represent.

Newsom and his Attorney General, Rob Bonta, keep losing First Amendment lawsuits challenging the bad internet laws he keeps signing (even if Newsom pretends he won them). And he’s wasting California taxpayer money fighting losing battles while engaging in petty political stunts.

The latest are a pair of obviously unconstitutional AI bills, AB 2655 and AB 2839, about AI and deepfakes (and possibly AB 2355, which might be slightly more defensible, but not much). While much of the media coverage has been about SB 1047, an equally bad bill Newsom seems unlikely to sign, the California legislature spent this session coming up with a ton of awful and unconstitutional ideas.

The specifics of the laws here place limits on “election-related deepfakes.” This gets a bit trickier from a First Amendment standpoint because of two things pushing in opposite directions. The first is that election-related political speech is definitely considered some of the most well-protected, most untouchable speech under the First Amendment.

A big reason why we have that First Amendment is that the founders wanted to encourage a vigorous and sometimes contentious debate on the issues and our leaders. For that reason, I think courts will pretty clearly toss out these laws as unconstitutional.

The one thing pushing back on this is there is that there is one area where courts have granted states more leeway in saying certain election-related information is not protected: when it’s lies about actual voting, such as where voting will be, when and how. There was a recent paper looking at some of these restrictions.

But the problem is that the laws Newsom just signed are not, in any way, limited in that manner. AB 2839 bans the sharing of some election-related deepfakes around election time.

AB 2655 then requires “a large online platform” to block political deepfakes around election time. Notably, it exempts broadcast TV, newspapers, magazines, and vaguely defined “satire or parody” content, which increases the list of reasons it’s clearly unconstitutional. Similar laws are thrown out for being “underinclusive” in not covering other similar content, since that proves that the government’s action here is not necessary.

Of course, that “satire or parody” exception just means everyone sharing these videos will claim they’re satire or parody. Any lawsuits would then be fought over whether or not they’re satire or parody, and that’s something judges shouldn’t be deciding.

AB 2355 requires political ads to disclose if they used AI. This is… kinda meaningless? As digital creation tools increasingly will use AI in the background for all sorts of things (fix the lighting! adjust the cloud cover!) this gets kind of silly.

Gavin Newsom tweeted about how he would use these laws to force Elon to remove a stupid, obvious deepfake he had posted of Kamala Harris, as if playing up that this is an unconstitutional stunt.

Look, I get that Newsom isn’t big on the First Amendment. But tweeting out that you signed a bill to make sure a specific piece of content gets removed from social media is pretty much waving a giant red flag that says “HEY, I’M HERE VIOLATING THE FIRST AMENDMENT, LOOK AT ME, WHEEEEEEEE!!!”

Anyway, within probably minutes of Newsom signing the bill into law, the first lawsuit challenging 2655 and 2839 was filed. It’s by Christopher Kohls, who created the video that Elon shared, and which Newsom directly called out as one that he intended to forcibly remove. As expected, Kohl claims his video (which is, I assure you, very, very stupid) is a “parody.”

On July 26, 2024, Kohls posted a video parodying candidate Kamala Harris’s first presidential campaign ad. The humorous YouTube video (“the July 26 video”) is labeled “parody” and acknowledges “Sound or visuals were significantly edited or digitally generated.”

The July 26 video features AI-generated cuts of a voice sounding like Vice President Harris narrating why she should be President. In the video “Harris” announces she is the “Democrat candidate for President because Joe Biden”—her prior running mate, current boss, and the President—“finally exposed his senility at the” infamous presidential debate with former President Trump on June 27, 2024. The video’s voiceover closely resembles Harris’s voice and the production itself mirrors the aesthetic of a real campaign ad—using clips from Harris’s own campaign videos—but the comedic effect of the video becomes increasingly clear with over-the-top assertions parodying political talking points about Harris and her mannerisms. “She” claims to have been “selected because [she is] the ultimate diversity hire and a person of color, so if you criticize anything [she] say[s], you’re both sexist and racist.” The “Harris” narrator claims that “exploring the significance of the insignificant is in itself significant,” before the video cuts to a clip of the real Harris making similarly incomprehensible remarks about “significance.”

Kohls, who is ideologically opposed to Harris’ political agenda, created this content to comment about Harris’s candidacy in humorous fashion

So here’s the thing. If Newsom had kept his mouth shut, California AG Rob Bonta could have turned around and said Kohls has no standing to sue here, because the video is clearly a parody and the law exempts parody videos. But Newsom, wanting to be a slick social media culture warrior, opened his trap and told the world that the intent of this law was to remove videos exactly like Kohls’ stupid video.

And as stupid as I think Kohls’ video is, and as pathetic as it is that Elon would retweet it, the lawsuit is correct on this:

Political speech like Kohls’ is protected by the First Amendment

I don’t think the lawsuit is particularly well done. It’s a bit sloppy, and the arguments are not as strong as they might otherwise be. I think there could be better filings challenging these laws, but this law seems so blatantly unconstitutional that even a poorly argued case should be able to win.

Yes, this is equally as bad as the awful laws being passed in Florida and Texas (and to some extent New York). It’s kind of incredible how these four states (two strongly Republican, two strongly Democrat) just keep passing the worst, most obviously unconstitutional internet/speech laws, and thinking that just because partisan idiots cheer them on it must be fine.