“Almost any digitally altered content, when left up to an arbitrary individual on the Internet, could be considered harmful,” Mendez said, even something seemingly benign like AI-generated estimates of voter turnouts shared online.
Additionally, the Supreme Court has held that “even deliberate lies (said with ‘actual malice’) about the government are constitutionally protected” because the right to criticize the government is at the heart of the First Amendment.
“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,” Mendez said.
According to Mendez, X posts like Kohls’ parody videos are the “political cartoons of today” and California’s attempt to “bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment” is not justified by even “a well-founded fear of a digitally manipulated media landscape.” If officials find deepfakes are harmful to election prospects, there is already recourse through privacy torts, copyright infringement, or defamation laws, Mendez suggested.
Kosseff told Ars that there could be more narrow ways that government officials looking to protect election integrity could regulate deepfakes online. The Supreme Court has suggested that deepfakes spreading disinformation on the mechanics of voting could possibly be regulated, Kosseff said.
Mendez got it “exactly right” by concluding that the best remedy for election-related deepfakes is more speech, Kosseff said. As Mendez described it, a vague law like AB 2839 seemed to only “uphold the State’s attempt to suffocate” speech.
Parody is vital to democratic debate, judge says
The only part of AB 2839 that survives strict scrutiny, Mendez noted, is a section describing audio disclosures in a “clearly spoken manner and in a pitch that can be easily heard by the average listener, at the beginning of the audio, at the end of the audio, and, if the audio is greater than two minutes in length, interspersed within the audio at intervals of not greater than two minutes each.”
In his complaint, Christopher Kohls—who is known as “Mr Reagan” on YouTube and X (formerly Twitter)—said that he was suing “to defend all Americans’ right to satirize politicians.” He claimed that California laws, AB 2655 and AB 2839, were urgently passed after X owner Elon Musk shared a partly AI-generated parody video on the social media platform that Kohls created to “lampoon” presidential hopeful Kamala Harris.
AB 2655, known as the “Defending Democracy from Deepfake Deception Act,” prohibits creating “with actual malice” any “materially deceptive audio or visual media of a candidate for elective office with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate, within 60 days of the election.” It requires social media platforms to block or remove any reported deceptive material and label “certain additional content” deemed “inauthentic, fake, or false” to prevent election interference.
The other law at issue, AB 2839, titled “Elections: deceptive media in advertisements,” bans anyone from “knowingly distributing an advertisement or other election communication” with “malice” that “contains certain materially deceptive content” within 120 days of an election in California and, in some cases, within 60 days after an election.
Both bills were signed into law on September 17, and Kohls filed his complaint that day, alleging that both must be permanently blocked as unconstitutional.
Elon Musk called out for boosting Kohls’ video
Kohls’ video that Musk shared seemingly would violate these laws by using AI to make Harris appear to give speeches that she never gave. The manipulated audio sounds like Harris, who appears to be mocking herself as a “diversity hire” and claiming that any critics must be “sexist and racist.”
“Making fun of presidential candidates and other public figures is an American pastime,” Kohls said, defending his parody video. He pointed to a long history of political cartoons and comedic impressions of politicians, claiming that “AI-generated commentary, though a new mode of speech, falls squarely within this tradition.”
While Kohls’ post was clearly marked “parody” in the YouTube title and in his post on X, that “parody” label did not carry over when Musk re-posted the video. This lack of a parody label on Musk’s post—which got approximately 136 million views, roughly twice as many as Kohls’ post—set off California governor Gavin Newsom, who immediately blasted Musk’s post and vowed on X to make content like Kohls’ video “illegal.”
In response to Newsom, Musk poked fun at the governor, posting that “I checked with renowned world authority, Professor Suggon Deeznutz, and he said parody is legal in America.” For his part, Kohls put up a second parody video targeting Harris, calling Newsom a “bully” in his complaint and claiming that he had to “punch back.”
Shortly after these online exchanges, California lawmakers allegedly rushed to back the governor, Kohls’ complaint said. They allegedly amended the deepfake bills to ensure that Kohls’ video would be banned when the bills were signed into law, replacing a broad exception for satire in one law with a narrower safe harbor that Kohls claimed would chill humorists everywhere.
“For videos,” his complaint said, disclaimers required under AB 2839 must “appear for the duration of the video” and “must be in a font size ‘no smaller than the largest font size of other text appearing in the visual media.'” For a satirist like Kohls who uses large fonts to optimize videos for mobile, this “would require the disclaimer text to be so large that it could not fit on the screen,” his complaint said.
On top of seeming impractical, the disclaimers would “fundamentally” alter “the nature of his message” by removing the comedic effect for viewers by distracting from what allegedly makes the videos funny—”the juxtaposition of over-the-top statements by the AI-generated ‘narrator,’ contrasted with the seemingly earnest style of the video as if it were a genuine campaign ad,” Kohls’ complaint alleged.
Imagine watching Saturday Night Live with prominent disclaimers taking up your TV screen, his complaint suggested.
It’s possible that Kohls’ concerns about AB 2839 are unwarranted. Newsom spokesperson Izzy Gardon told Politico that Kohls’ parody label on X was good enough to clear him of liability under the law.
“Requiring them to use the word ‘parody’ on the actual video avoids further misleading the public as the video is shared across the platform,” Gardon said. “It’s unclear why this conservative activist is suing California. This new disclosure law for election misinformation isn’t any more onerous than laws already passed in other states, including Alabama.”
Enlarge/ A pedestrian walks past a flown Falcon 9 booster at SpaceX headquarters in Hawthorne, California, on Tuesday, the same day Elon Musk said he will relocate the headquarters to Texas.
Elon Musk said Tuesday that he will move the headquarters of SpaceX and his social media company X from California to Texas in response to a new gender identity law signed by California Governor Gavin Newsom.
Musk’s announcement, made via a post on X, follows his decision in 2021 to move the headquarters of the electric car company Tesla from Palo Alto, California, to Austin, Texas, in the wake of coronavirus lockdowns in the Bay Area the year before. Now, two of Musk’s other major holdings are making symbolic moves out of California: SpaceX to the company’s Starbase launch facility near Brownsville, Texas, and X to Austin.
The new gender identity law, signed by Governor Newsom, a Democrat, on Monday, bars school districts in California from requiring teachers to disclose a change in a student’s gender identification or sexual orientation to their parents without the child’s permission. Musk wrote on X that the law was the “final straw” prompting the relocation to Texas, where the billionaire executive and his companies could take advantage of lower taxes and light-touch regulations.
“Because of this law and the many others that preceded it, attacking both families and companies, SpaceX will now move its HQ from Hawthorne, California, to Starbase, Texas,” Musk wrote Tuesday on X.
The first-in-the-nation law in California is a flashpoint in the struggle between conservative school boards concerned about parental rights and proponents for the privacy rights of LGBTQ people.
“I did make it clear to Governor Newsom about a year ago that laws of this nature would force families and companies to leave California to protect their children,” wrote Musk, who on Saturday endorsed former President Donald Trump, the Republican nominee in this year’s presidential election.
In a statement, Newsom’s office said the law “does not allow a student’s name or gender identity to be changed on an official school record without parental consent” and “does not take away or undermine parents’ rights.”
What does this mean for SpaceX?
Musk’s comments on X didn’t mention details about the implications of his companies’ moves to Texas. However, while Tesla’s corporate headquarters relocated to Texas in 2021, the company still produces cars in California and announced a new engineering hub in Palo Alto last year. The situation with SpaceX is likely to be similar.
Since Musk bought Twitter in 2022, he renamed it X, rewrote the network’s policies on content moderation, and laid off most of the company’s staff, reducing its workforce to around 1,500 employees. With vast manufacturing capacities, SpaceX currently has more than 13,000 employees, so a relocation for Musk’s space company would affect more people and potentially be more disruptive than one at X.
SpaceX’s current headquarters in Hawthorne, California, serves as a factory, engineering design center, and mission control for the company’s rockets and spacecraft. Relocating these facilities wouldn’t be easy, but SpaceX may not need to.
