Comment by John Coleman

A handful of bills introduced this year seek to categorically ban “deepfakes.” In other words, these bills would make it unlawful to create or share AI-generated content depicting someone saying or doing something that the person did not in reality say or do. These examples should not be taken to suggest that AI is always a positive force for shaping public discourse. It’s not. But not only will categorical bans on deepfakes restrict protected expression such as the examples above, they’ll face — and are highly unlikely to survive — the strictest judicial scrutiny under the First Amendment. North Dakota’s HB 1320, a failed bill that FIRE opposed, is a clear example of what would have been an unconstitutional categorical ban on deepfakes. The bill would have made it a misdemeanor to “intentionally produce, possess, distribute, promote, advertise, sell, exhibit, broadcast, or transmit” a deepfake without the consent of the person depicted. It defined a deepfake as any digitally-altered or AI-created “video or audio recording, motion picture film, electronic image, or photograph” that deceptively depicts something that did not occur in reality and includes the digitally-altered or AI-created voice or image of a person. This bill was overly broad and would criminalize vast amounts of protected speech. It was so broad that it would be like making it illegal to paint a realistic image of a busy public park without obtaining everyone’s consent. Why make it illegal for that same painter to take their realistic painting and bring it to life with AI technology? Unverified source (2025)