After partial victory, Babylon Bee advances lawsuit against California censorship law

The Babylon Bee is continuing with its lawsuit against a California deepfake law that would require social media companies to block “deceptive” content about politicians, noting its partial victory in a ruling against the state’s other political “deepfake” law in October.

Given that the law applies to federal elections that include California, such as president, the lawsuit could have national free speech implications. 

Earlier this year, after entrepreneur Elon Musk shared an AI-generated parody video of Vice President Kamala Harris, California Gov. Gavin Newsom declared, “manipulating a voice in an ‘ad’ like this one should be illegal.” His office then told The Center Square he is “working with the Legislature to ensure this issue is addressed in a bill already going through the legislative process.”

While Newsom’s office would not specify which bills it was talking about enacting to follow through on this call to action, The Center Square examined AB 2655, called the “Defending Democracy from Deepfake Deception Act of 2024,” and its companion bill AB 2839 as likely candidates; Newsom included these two bills, in addition to another, as of yet unchallenged bill requiring political advertisements using substantially altered or AI-generated content to disclose such, in his “deepfake election content” package. 

“Safeguarding the integrity of elections is essential to democracy, and it’s critical that we ensure AI is not deployed to undermine the public’s trust through disinformation – especially in today’s fraught political climate,” said Newsom in his statement on the package. “These measures will help to combat the harmful use of deepfakes in political ads and other content, one of several areas in which the state is being proactive to foster transparent and trustworthy AI.”

AB 2839, which had an urgency clause, took effect immediately, and would ban “materially deceptive” AI-generated content regarding candidates, election officials, and election-related materials in the 120 days before and 60 days after elections, with violations allowing for civil lawsuits and damages; parody would be allowed under the bill, but only if prominent parody disclaimers are included on the content. 

AB 2655, which will take effect on January 1, requires online platforms with more than one million California users to remove AI-generated “materially deceptive content” about candidates, election officials in the 120 days leading up to an election, and, for election official content, in the 60 days after an election. In the six months leading up to election day, platforms would have to label deceptive content. The law includes an exemption for content that includes disclosures on the use of deceptive content. 

A lawsuit against AB 2839 by the maker of the Musk-shared Kamala parody video secured a preliminary injunction from a federal court, which ruled the bill “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 democratic debate.”

The Bee’s lawsuit against AB 2655 alleges the bill “converts social media platforms into California state snitches by requiring them to field reports about user posts with “materially deceptive content” and then remove or label them,” and “targets political expression.” 

Yesterday, the Bee’s separate suit was consolidated with Kohls v. Bonta,  the case that secured the preliminary injunction against AB 2839, and is still continuing against AB 2655. 

“Our job is hard enough when our jokes keep coming true, as if they were prophecies,” said The Babylon Bee CEO Seth Dillon,” in a statement on the case consolidation. “But it becomes significantly more difficult when self-serving politicians abuse their power to try to control public discourse and clamp down on comedy. Unfortunately for them, the First Amendment secures our right to tell jokes they don’t like.”

AB 2655 applies to any election a “covered” candidate is on the ballot, which includes any voter-nominated office in California, ranging from municipal to federal elections, and specifically includes president of the United States. The law covers voting machines, voting ballots, electoral college proceedings in California; it’s unclear if content describing voting machines in use in several states, including California, and specifically mentioning California, among other states, would be in violation of this law.