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?