A federal court judge issued a preliminary injunction against a two-week-old California law that effectively bans election-related deepfakes.

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

Judge John A. Mendez said artificial intelligence and deepfakes pose significant risks but ruled that the law was “unconstitutional” as it likely violated 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. Kohls created a controversial AI-altered campaign video in July mocking United States Vice President Kamala Harris 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 Attorney General Rob Bonta and Secretary of State Shirley N. Weber to block the new law a day after California Governor Gavin Newsom signed it into law on Sept. 17. 

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

Mendez said 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.” 
Judge finds new California election deepfake ban unconstitutional image 0

Excerpt from Judge John A. Mendez’s decision in the Kohls case. Source: Election Law Blog

Mendez further agreed with Kohls’ lawyer that the 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 viewed the court ruling as a win.

Judge finds new California election deepfake ban unconstitutional image 1

Source: Elon Musk

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

Newsom on Sept. 30 vetoed the Safe and Secure Innovation for Frontier Artificial Intelligence Models Act — SB 1047 — 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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