The Hawaiian legislature passed Act 191 in an attempt to prohibit “materially deceptive media” that would harm the “reputation or electoral prospects of a candidate in an election.” This seems like an infringement on free speech. The District Court for the District of Hawaii agreed.
Hawaii Act 191
How can you tell when a politician is lying? The general answer is, “When their lips are moving.” But how can you tell when someone is lying about a politician? That is where the Hawaiian legislature stepped in with Act 191.
To thwart the use of deepfake and generative artificial intelligence (“AI”) technologies to influence State elections, Hawai‘i passed Act 191.1 Act 191 aims to regulate the distribution of election-based content that is “materially deceptive.”
Babylon Bee v. Lopez
This of course raises some serious red flags for anyone who is constitutionally literate. The first concern should be what is “materially deceptive?”
Act 191 defines “materially deceptive media” as digitally created “advertisement[s]” in the form of “video, image, or audio, that:” “[d]epict[] an individual engaging in speech or conduct in which the depicted individual did not in fact engage” and “[w]ould cause a reasonable viewer or listener to believe that the depicted individual engaged in the speech or conduct depicted.”
Babylon Bee v. Lopez
I will dig into the questions of advertisements and reasonableness later, but I think this gives us a good idea of what the Hawaiian legislature had in mind. Imagine you decide to run for office on an anti-drug platform only to have someone create an image of you smoking a joint and sniffing cocaine with a needle in your arm. That could easily lead someone to believe that you participated in drug use, even if you never had.
And of course there are exceptions to this law.
The statute includes exemptions for broadcasters and certain service providers and provides a safe harbor provision for materially deceptive media that includes a disclaimer that meets certain content and formatting specifications enumerated in the statute.
Babylon Bee v. Lopez
And here is where I think Hawaii’s argument begins to fall apart. The law states that if you were to publish a fake photo or video about your opponent you’d be in trouble, but if a broadcaster or some service provider were to publish a fake video about you that’s fine.
The Babylon Bee and Dawn O’Brien filed a lawsuit against Hawaii Attorney General Anne Lopez and others.
Plaintiffs The Babylon Bee, LLC (“The Bee”), and Dawn O’Brien (“O’Brien”) (collectively “Plaintiffs”) are parodists and humorists who create and post digital content about politics on various internet platforms and social media websites. Plaintiffs’ content contains admittedly false and hyperbolic information. Plaintiffs maintain that their content constitutes protected political speech and, with respect to The Bee, reflects a “longstanding tradition of using satire and parody to speak the truth, expose bad ideas, and encourage societal change.”
Babylon Bee v. Lopez
Both the plaintiffs and the state defendants filed cross-motions for summary judgment. Let’s look at how the court analyzed these motions.
Standing
The first question the court dealt with was the state’s challenge to the defendant’s standing.
“Article III ‘requires a plaintiff to have [1] suffered an injury in fact, [2] by the defendant’s conduct, that [3] can be redressed by a favorable result.’” Planned Parenthood Great Nw. v. Labrador
Babylon Bee v. Lopez
Except Article III of the United State’s Constitution says no such thing.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
U.S. Constitution, Article III, Section 2
Notice, Judge Shanlyn Park, who heard the case, didn’t point to the Constitution. Rather she pointed to a Ninth Circuit case which made this claim, by quoting another Ninth Circuit case, referring to yet a third case, this one from the Supreme Court. In none of my research did any of these cases actually point to language in the Constitution to support their assertion.
The court however did find that plaintiffs had standing, in large part because of a credible threat of enforcement.
Based on the foregoing, the Court concludes that Plaintiffs have adduced enough evidence to show that there is a realistic threat that Act 191 may be enforced against them.
Babylon Bee v. Lopez
First Amendment
Both The Babylon Bee and Ms. O’Brien claimed this law violates the First Amendment to the Constitution.
Plaintiffs bring a facial attack against Act 191, arguing that the statute is unconstitutional because it restricts protected political speech and, in doing so, discriminates based on content, viewpoint, and speaker; and it compels speech. … In response, State Defendants maintain that Act 191 is non-viewpoint discriminatory because it does not target views taken by speakers, but they concede that “Act 191, at most, regulates speech based on its subject matter” (i.e., content about candidates and ballot issues) and includes speaker-based “distinctions.”
Babylon Bee v. Lopez
As frequently happens, the courts, and therefore the attorneys, ignore that actual language of the First Amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; …
U.S. Constitution, Amendment I
Once again the court follows a fictitious statement about the Constitution because previous courts found it advantageous.
“The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech.” Nat’l Inst. of Family & Life Advocs. v. Becerra,
Babylon Bee v. Lopez
The problem is, Justice Thomas made this statement without any actual reference to the Fourteenth Amendment to the Constitution that he is claiming as proof he is correct. In fact there is no language in the Fourteenth Amendment that changes the language of the First to claim it applies to the states.
Fourteenth Amendment
What we have here is a clear violation of the Fourteenth Amendment, just not the way the judge thinks.
Finally, having determined that Plaintiffs prevail on their First Amendment summary judgment claim, the Court addresses Plaintiffs’ void-for-vagueness challenge under the Due Process Clause of the Fourteenth Amendment.
Babylon Bee v. Lopez
It’s not the vagueness that violates the Fourteenth Amendment, it’s the deprivation of liberty without due process of law.
nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV
Hawaii is claiming to punish people for exercising their right to speak their mind without showing that what they are doing is violating the rights of others. While the court claims this is due to vague language, what I see is clearly a violation of equal protection.
… nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Constitution, Amendment XIV
Act 191 claims that for something to be “materially deceptive media” it:
Was created by:
(A) Generative adversarial network techniques or another technique that translates a source image into another image using machine learning, deep learning techniques, and convolutional neural networks;
(B) Artificial intelligence; or
(C) Digital technology.
Babylon Bee v. Lopez
What if someone uses a technique other than machine learning or similar techniques? Let’s face it, people have been manipulating images since photography was born in the early 19th century. Heck, the movie industry is all about convincing reasonable viewers that they recorded something that didn’t actually happen. But Hawaii only wants to punish those whose targets are candidates during an election.
Yet what about the exceptions? Act 191 specifically excludes:
(1) A broadcaster, cable operator, or direct-to-home satellite provider unless it was involved in the creation of the materially deceptive media; or
(2) An interactive computer service, cloud service provider, or streaming service for content provided by another person or a developer or provider of any technology used in the creation of materially deceptive media, unless the interactive computer service, cloud service provider, or streaming service has knowledge that the content is deceptive and intends to deceive a resident of the State.
Babylon Bee v. Lopez
So a broadcaster, cable, or satellite operator can broadcast any fictitious material it wants, as long as it wasn’t involved in the creation of the material? And why are computer services only exceptions if they had no knowledge that the content was “deceptive?” But not broadcasters? It’s almost as if Hawaii wants to hold the “new media” to one standard and corporate broadcasters to another, in direct violation of the Equal Protection Clause.
Conclusion
I understand that a candidate would not want defamatory information published about them, especially during a campaign. I’m sure it’s one of the reasons otherwise qualified people do not run for office, though this is a problem created in large part by the courts.
Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations.
New York Times Co. v. Sullivan
This has led many courts to take otherwise defamatory content, not unlike what Hawaii claims is “materially deceptive,” and claim protection under the First and Fourteenth Amendments.
The problem with Act 191 is that it takes traditional political speech, satire, parody, and hyperbole, and turns them into new crimes. However, if the courts allowed candidate to sue those who make materially deceptive content of any kind for defamation, then at least the candidates would have a chance to defend themselves without infringing on the rights of others.
