• by Wendy Davis , 2 hours ago

A Minnesota state lawmaker and a right-wing political commentator are pressing an appellate court to decide whether a law prohibiting "realistic" deep fakes of politicians violates the First Amendment.

That statute, which Elon Musk's X Corp. is also challenging in a separate lawsuit, defines “deep fake” as a video or photo that's “so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct," and is generated by artificial intelligence.

The measure, passed in 2023, provides for criminal penalties, including fines, and allows for enforcement by the Minnesota Attorney General, county attorneys, city attorneys, the person depicted in the “deep fake,” and a candidate for office who “is injured or likely to be injured" by the images.

Conservative commentator Christopher Kohls and state Representative Mary Franson, a Republican, sued in 2024 to strike down the law, arguing it's unconstitutional.

Kohls famously used artificial intelligence to create a video of Democratic presidential candidate Kamala Harris in 2024. That video falsely presented her as saying, "I, Kamala Harris, am your Democrat candidate for president because Joe Biden finally exposed his senility at the debate."

The clip, still available on YouTube, is currently labeled as parody and carries the disclaimer "altered or synthetic content."

Last year, U.S. District Court Judge Laura Provinzino in Minnesota declined to block the law.

She ruled that Kohls lacked “standing” because his content was labeled as parody and therefore wouldn't deceive anyone, and that Franson waited too long after the law took effect to seek an injunction.

Kohls and Franson appealed that ruling to the 8th Circuit.

“The law criminalizes parody, satire, and core political criticism -- speech at the heart of the First Amendment,” their lawyers argued in a written brief.

“Its vague and subjective terms, (e.g., whether a video is 'realistic' to a 'reasonable person') invite discriminatory enforcement,” counsel added.

Last month, a three-judge panel of the 8th Circuit sided against Kohls and Franson. The panel ruled Kohl lacked standing, writing that his videos "are not deep fakes under the statute" because they're labeled as parodies. The panel also agreed with Provinzino that Franson wasn't entitled to an immediate injunction because she waited more than one year to sue.

On Tuesday, Kohls and Franson asked for a new hearing in front of all 11 active judges in the 8th Circuit.

Their counsel says three-judge panel wrongly decided that Kohls lacked "standing," arguing that the law itself doesn't contain a carve-out for parodies.

"The statutory ban depends only on how 'realistic' the video is, and does not include any exception for accompanying disclaimers," their attorneys argue.

"There is no parody exception, no political-speech exception, no safe harbor for proper disclaimers, and no other exception that one may think of," counsel argues. "Nevertheless, the panel created one: a labeled-as-parody exception."

Kohls had also sued over a comparable California state law (AB 2839), which would have prohibited people from posting “materially deceptive” videos of political candidates. A district court judge in California sided with Kohls and blocked enforcement of that statute on First Amendment grounds.

The 8th Circuit hasn't yet indicated when it will rule on the request for a new hearing.