'Wonderful repudiation of totalitarians': Judge rules Newsom's censorious meme ban unconstitutional

A federal judge ruled Wednesday that California Gov. Gavin Newsom's (D) meme ban is unconstitutional.

Judge John A. Mendez of the U.S. District Court for the Eastern District of California noted that Newsom's AB 2839 "acts as a hammer instead of a scalpel, serving as a blunt tool that hinders humorous expression and unconstitutionally stifles the free and unfettered exchange of ideas which is so vital to American debate."

Christopher Kohls, the satirist who sued in hopes of killing the ban, took to X, writing, "VICTORY! Lawsuit against Newsom has been won."

Elon Musk, whose re-sharing of one of Kohls' memes appears to have prompted Democrats to push the ban, wrote, "California's unconstitutional law infringing on your freedom of speech has been blocked by the court. Yay!"

Background

Kohls, who goes by Mr Reagan online, shared a Kamala Harris campaign ad parody on July 26. The video used many visuals present in real Harris ads in circulation at the time but had a new script read by a convincing AI-generated Harris soundalike.

"I, Kamala Harris, am your Democrat candidate for president because Joe Biden finally exposed his senility at the debate," says the AI voice in the nearly two-minute video. "I was selected because I am the ultimate diversity hire. I am both a woman and a person of color. So if you criticize anything I say, you're both sexist and racist."

'Parody is legal in America.'

The video enjoyed significantly more traction after Elon Musk retweeted it, netting hundreds of millions of views. Of course, Democrats in and outside the Harris campaign were apoplectic.

Mia Ehrenberg, a spokeswoman for the Harris campaign, told the Associated Press, "We believe the American people want the real freedom, opportunity and security Vice President Harris is offering; not the fake, manipulated lies of Elon Musk and Donald Trump."

Newsom also appeared prickled by the success of the parody video, writing, "Manipulating a voice in an 'ad' like this one should be illegal. I'll be signing a bill in a matter of weeks to make sure it is."

Musk once again retweeted the offending video and wrote to Newsom, "I checked with renowned world authority, Professor Suggon Deeznutz, and he said parody is legal in America."

It is worth noting, no such professor exists.

Humorless Democrats

As promised, Newsom ratified two pieces of censorious legislation on Sept. 17.

The first, AB 2839, banned the distribution of advertisements or other election-related communications containing "materially deceptive content" within 120 days of an election, and in some cases, 60 days after an election.

The term "materially deceptive" was defined thusly: "audio or visual media that is digitally created or modified, and that includes, but is not limited to, deepfakes and the output of chatbots, such that it would falsely appear to a reasonable person to be an authentic record of the content depicted in the media."

Assembly member Gail Pellerin, the Democrat responsible for AB 2839, said in a statement, "With fewer than 50 days until the general election, there is an urgent need to protect against misleading, digitally-altered content that can interfere with the election. With the enactment of AB 2839, California is taking a stand against the manipulative use of deepfake technology to deceive voters."

The second piece of legislation, AB 2655, the so-called "Defending Democracy from Deepfake Deception Act of 2024," would force social media companies to censor users' politically protected speech deemed "materially deceptive."

Like Pellerin, Newsom — who just passed a law barring all local governments from requiring voters to provide proof of identification — characterized this legislative push as a way to shore up election integrity.

In response to the bill-signing, Musk doubled down, reposting the video with the caption, "The governor of California just made this parody video illegal in violation of the Constitution of the United States. Would be a shame if it went viral."

Kohl sues — and wins

Kohl, represented by the Hamilton Lincoln Law Institute, filed a lawsuit within hours of Newsom's ratification of the censorial legislation, claiming AB 2839 violates the First and 14th Amendments.

The complaint noted AB 2839:

• "constitutes an impermissible and unreasonable restriction of protected speech because it burdens substantially more speech than is necessary to further the government's legitimate interests in ensuring fair and free elections";
• "bars and chills speech based on content, viewpoint, and speaker";
• "is not content-neutral because it targets only AI-generated election-related speech";
• "is not speaker-neutral because it exempts actual candidates from using AI in their own favor if they include a disclaimer in their content"; and
• "contains no exemption for parody or satire."

Judge Mendez granted Kohl a preliminary injunction against the ban Wednesday: "AB 2839 does not pass constitutional scrutiny because the law does not use the least restrictive means available for advancing the State's interest here."

A 'powerful reaffirmation of free speech values in a world of new technology.'

The judge agreed that counter speech is less restrictive than outright censorship and emphasized that lawmakers' fears of a digitally manipulated media landscape does not give them "unbridled license to bulldoze over the longstanding tradition of critique, parody and satire protected by the First Amendment."

Mendez, who expressed sensitivity to the risks posed by AI and deepfakes, further noted that AB 2839 is unconstitutional "because it lacks the narrow tailoring and least restrictive alternative that a content based law requires under strict scrutiny."

Adam Schulman, senior attorney with the Hamilton Lincoln Law Institute, called the ruling a "powerful reaffirmation of free speech values in a world of new technology."

Michael Shellenberger, the CBR chair of politics, censorship, and free speech at the University of Austin, said of the ruling, "Free speech, not censorship, is the solution to bad info. Wonderful repudiation of totalitarians @GavinNewsom @KamalaHarris & @Tim_Walz."

Musk congratulated Kohl, writing, "Score one for the people's right to free speech."

Newsom spokesperson Izzy Gardon said in a statement to Politico that the governor's office was "confident" the courts would ultimately uphold the state's ability to regulate deepfakes.

"Deepfakes threaten the integrity of our elections, and these new laws protect our democracy while preserving free speech," said Gardon. "Satire remains alive and well in California — even for those who miss the punchline."

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