Judge blocks Gavin Newsom's AI censorship bill as violation of First Amendment

A California law signed by Governor Gavin Newsom late last month that was in direct reaction to his disgust at AI parodies of his friend Vice President Kamala Harris has been struck down after US District Judge John A. Mendez ruled that it was in violation of the First Amendment. The Plaintiff in the case has been granted a preliminary injunction, stopping the law from going into effect while the case goes forward.

"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," he wrote. The bill blocked the posting or distribution of AI or deepfakes that is "materially deceptive" concerning elections during the periods leading up to and following elections.

In July, a fake campaign ad for the Harris-Walz campaign went viral. In the ad, a likeness of Harris appeared to stake a claim to being the first DEI candidate to be on a presidential ticket. People found the obvious fake to be hilarious, including Elon Musk, who tweeted it out. "Manipulating a voice in an 'ad' like this one should be illegal," Newsom posted to X. "I'll be signing a bill in a matter of weeks to make sure it is."

Newsom and the state of California were promptly sued for First Amendment violations by YouTuber Christopher Kohls, who shared the video. And he won, so far. Mendez wrote that he ruled in favor of the injunction because "Kohls is Likely to Succeed in showing that AB 2839 Facially Violates the First Amendment."

Journalist Michael Shellenberger shared details of the ruling on X. "Brilliant and bravo," he wrote, quoting the ruling, "In New York Times v. Sullivan, the Supreme Court held that even deliberate lies (said with 'actual malice') about the government are constitutionally protected. These same principles safeguarding the people's right to criticize government and government officials apply even in the new technological age when media may be digitally altered: civil penalties for criticisms on the government like those sanctioned by AB 2839 have no place in our system of governance."

In the ruling, Mendez wrote, "AB 2839 does not pass constitutional scrutiny because the law does not use the least restrictive means available for advancing the State's interest here. As Plaintiffs persuasively argue, counter speech is a less restrictive alternative to prohibiting videos such as those posted by Plaintiff, no matter how offensive or inappropriate someone may find them."

Mendez' ruling is in favor of the axiom that the cure for bad speech is simply more speech, not restrictions on speech. He continued, saying that especially where political speech is concerned, "Counter speech is the tried and true buffer and elixir, not speech restriction."

"AB 2839," Mendez ruled, "is unconstitutional because it lacks the narrow tailoring and least restrictive alternative that a content based law requires under strict scrutiny." He also went on to address the Harris fake that Newsom had objected to, saying that the video portrayed Harris as saying she is "the ultimate diversity hire," noting that after Musk shared it, it got over 100 million views on X alone.

After Newsom signed the bill into law, Musk shared the video again, saying, "The governor of California just made this parody video illegal in violation of the Constitution of the United States. Would be a shame if it went viral."

The ruling stated that "at face value, AB 2839 does much more than punish potential defamatory statements since the statute does not require actual harm and sanctions any digitally manipulated content that is 'reasonably likely' to 'harm' the amorphous 'electoral prospects' of a candidate or elected official."

Further, it stated that "all 'deepfakes' or any content that 'falsely appear[s] to a reasonable person to be an authentic record of the content depicted in the media' are automatically subject to civil liability because they are categorically encapsulated in the definition of 'materially deception content' used throughout the statute." In other words, the law as written preemptively punishes content that does not even create harm, simply based on the perception that it could.

Musk's sharing of the joke ad at Harris' expense became a controversy on social media platform X simply because everyone could weigh in on the joke that launched the censorship law and the two men going head-to-head over it. Musk, a free speech absolutist, posted, "California’s unconstitutional law infringing on your freedom of speech has been blocked by the court. Yay!"

"Stop using the Internet as an excuse for censorship," Shellenberger said, again quoting the ruling: "'whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles' of the First Amendment 'do not vary' and Courts must ensure that speech, especially political or electoral speech, is not censored."

"Dear Gavin Newsom, You lost. This is America. We don't want your totalitarianism here. Don't bother appealing."