Institute for Free Speech

While there are many problems with this proposal, a few stand above the others and are fatal to this effort. First, the Commission lacks statutory authority to require disclosure or disclaimers on political advertisements that utilize “artificial intelligence.” Congress knows how to require disclaimers on political advertisements. Indeed, it has done so repeatedly, explicitly requiring certain political communications to include “paid for by” disclaimers and “stand by your ad” statements. It has adopted no analogous requirement for AI-generated content. In the absence of Congressional authorization, the FCC cannot rely on its general authority to adopt rules as “necessary” to carry out the provision of the Federal Communications Act of 1934, as amended (the “Act”). This is not a free-floating grant of authority. It requires a tie to another provision of the Act. And there is no provision concerning AI-generated content. There is no general authority for the FCC to police the truth or falsity of political advertisements, nor could there be. This is particularly true for candidate broadcast advertising, where the Act itself explicitly denies broadcasters the ability—let alone the duty—to remove ads for any reason, including the truth or falsity of the communication. Second, even if the Commission could regulate AI-generated content in political advertisements—and it cannot—key definitions are overly broad and impermissibly vague. Proponents of the Rule point to the risk of so-called “deepfakes,” made possible by advances in machine-learning capabilities. But the definition of AI-generated content proposed by the Commission is untethered from these technological advances. Instead, it refers to content “generated using computational technology.” This would seem to encompass any content created in whole or in part using computers, which is to say, the vast majority of advertising content. Assuming the Commission does not intend for the Proposed Rule to sweep so broadly, people of ordinary intelligence must necessarily guess at what might be covered. This guesswork is inherently chilling and is not permitted under the First Amendment. Reasonable people may disagree about what, if anything, should be done about AI-generated content in political advertisements. But those decisions are for Congress to consider in the first instance. Not unelected officials in an agency whose core mission is not regulating political speech. This Commission can and should reject this Rule and allow the proper democratic processes to play out. (2024) source Unverified