Comment by Lisa P. Ramsey

The NO FAKES Act imposes restrictions on the content of speech. It targets the harms caused by the unauthorized creation and dissemination of digital replicas or deepfakes of individuals in recordings that are nearly indistinguishable from that person's actual voice, image, or visual likeness. When the Act applies to the use of digital replicas to impersonate people in fraudulent speech or misleading commercial speech, it is consistent with the First Amendment. There's also no conflict with the First Amendment when the Act restricts the use of digital replicas in sexually explicit deepfakes without consent if those images or videos constitute obscene speech or child pornography. The problem is that the current version of the NO FAKES Act also regulates nonmisleading speech that is protected by the First Amendment. Congress must therefore prove that the Act satisfies constitutional scrutiny. The law must be narrowly tailored to directly and materially further its goals and not harm speech that's protected by the First Amendment more than necessary. Strict scrutiny analysis may be required when the government is regulating the unauthorized use of digital replicas in political messages, news reporting, entertainment, and other types of noncommercial speech that's fully protected by the First Amendment. As it is currently drafted, I believe the NO FAKES Act is not consistent with the First Amendment because the law is overbroad and vague; however, I think a revised version of the law could satisfy intermediate and strict constitutional scrutiny. Unverified source (2024)