U.S. District Court Judge John Mendez
SACRAMENTO - A federal judge has upended a California law signed by Gov. Gavin Newsom that requires large social media platforms to take down “materially deceptive” content called “deepfakes” that are false or would likely harm a political candidate’s reputation.
U.S. District Judge John Mendez of the Eastern District of California announced his opinion on Aug. 5 in three consolidated cases, including the first filed, docketed as Christopher Kohls v. Bonta. The opinion said Assembly Bill 2655, which the governor signed last year in a bid to shield voters from misleading videos created with artificial intelligence, failed to pass legal muster.
“(Mendez) held that Section 230 of the Communications Decency Act pre-empts it,” Ted Frank, director of litigation and a senior attorney with the Hamilton Lincoln Law Institute, told the Southern California Record.
Frank is one of the attorneys representing Kohls, a political satirist also known as “Mr. Reagan.” Kohls filed a lawsuit last year challenging the constitutionality of AB 2655 and another bill (AB 2839) called “Elections: Deceptive Media in Advertisements.”
Both bills are vague and undefined measures that would create a chilling effect on political commentators such as Kohls and impermissibly interfere with his livelihood and right to freedom of speech, according to the Hamilton Lincoln Law Institute.
Last October, Mendez granted Kohls’ motion for a preliminary injunction against California Attorney General Rob Bonta and Secretary of State Shirley Weber to block their offices from enforcing most of the provisions of AB 2839.
Mendez’ Aug. 5 opinion did not reach a conclusion on the plaintiff’s First Amendment arguments, and it only applies to two social media platforms: X, formerly Twitter, and Rumble. Negotiations about the wording of an injunction are continuing, and “so far we’re optimistic we can work something out with the state of California,” Frank said.
He added that if required, the plaintiff’s attorneys would be comfortable proceeding with First Amendment arguments in the case.
It’s unclear whether California officials will decide to apply Mendez’ most recent ruling to social media platforms beyond X and Rumble.
The text of Mendez’ opinion will not be filed until the end of the month, according to the judge’s judicial assistant.
Under the provisions of AB 2655, social media platforms would have to take down AI content that runs afoul of the law during the 120-day period prior to Election Day. In addition, large platforms would have to develop strategies for labeling content and provide an avenue for California residents to report improper content.
The measure also provides for exceptions for online periodicals or publishers when the content in question is clearly labeled as not an accurate depiction of reality. The bill’s provisions exclude satire or parody, but critics say social media platforms may try to avoid litigation by simply rejecting anything that has a hint of satire.
Kohls’ lawsuit criticizes AB 2839 for providing political candidates or content viewers a cause of action to file lawsuits over messages or depictions they don’t like.
Bonta’s office has yet to decide on what legal action it will take as a result of the latest ruling.
“Our office is reviewing the AB 2655 ruling issued from the bench and will review the written order regarding AB 2839 when released,” a spokesman for Bonta said. “We are unable to preview legal strategy.”
Newsom advocated for legislation to regulate misleading AI political videos during election seasons after one of Kohls’ videos that lampooned presidential candidate Kamala Harris as the “ultimate diversity hire” was posted on X.
