• by Wendy Davis , November 15, 2024

A new California law aimed at combatting “deep fakes” in political ads violates the First Amendment, X Corp. says in a new lawsuit.

The measure “will inevitably result in the censorship of wide swaths of valuable political speech and commentary,” X argues in a complaint filed Thursday in federal court in Sacramento.

The company is seeking an injunction blocking the state from enforcing the Defending Democracy from Deepfake Deception Act (AB 2655).

Among other provisions, the statute, passed earlier this year and slated to take effect in January, requires large online platforms to block “materially deceptive” content. That term is defined to include anything portraying political candidates as saying something they didn't say, and that's “reasonably likely” to harm candidates' reputations or their chances of winning.

The bill also obligates large platforms to label some fake content about politicians, and to create a mechanism for reporting deceptive election-related material.

The measure's enforcement provisions allow a wide range of people -- including California's attorney general, district attorneys, city attorneys, political candidates, election officials and elected officials -- to sue for injunctions that would force platforms to remove “materially deceptive” content.

The law doesn't apply to satires or parodies.

X says in its complaint that the statute “has the effect of impermissibly replacing the judgments of covered platforms about what content belongs on their platforms with the judgments of the state.”

The company adds that the exemption for satires and parodies is unclear, arguing that people can arrive at different conclusions over whether an ad is satirical.

X also argues that the enforcement mechanisms will pressure platforms to err on the side of takedowns.

“In short, covered platforms may be sued if governmental officials or candidates think they have not censored or labeled enough content; but the platforms may not be sued by anyone if they have arguably censored or labeled too much content under the statute,” X argues. “The result is a system that highly incentivizes covered platforms to remove or label any content that presents a close call to avoid lawsuits altogether.”

The free speech advocacy group Foundation for Individual Rights and Expression opposed the law earlier this year, calling it “a disaster for multiple reasons.”

“It threatens Californians’ right to speak freely about politics in their state by saddling platforms with the impossible task of reviewing a deluge of complaints about allegedly deceptive content and quickly deciding whether it violates the statute,” the group wrote. “No doubt many of those complaints will be frivolous attempts to silence political adversaries. As we have seen in the context of the copyright notice-and-takedown system, platforms will likely make inaccurate judgments and err on the side of caution, suppressing massive amounts of constitutionally protected speech to avoid being constantly dragged into court.”

Earlier this month, U.S. District Judge John Mendez in Sacramento blocked a related bill (AB2839) that would have prohibited people from posting “materially deceptive” videos of political candidates.