Freedom of speech is not an absolute right, although you would not know it if you spent your time on internet forums. Social media and digital journalists went into a fury recently over California’s new law AB2355, which seeks to require disclosures of deepfakes, artificial intelligence altered images, audio or video. California Governor Gavin Newsom’s announcement of the law perhaps lacked tact, as he quoted an Elon Musk retweet post that included an altered video of Kamala Harris which was labeled as humorous, and to many was an obvious parody. Nevertheless, the record must be made clear to those who errantly believe that there is an absolute right to lambast that political speech should have limitations when the line between humor and impersonation is not so clear.
The United States constitution is vague on the freedom of speech stating, “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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Thus, the Supreme Court over time has defined tests of different levels of scrutiny for different types of speech, with political speech generally being the most lenient.
Supreme Court case Buckley v Valeo established that "The First Amendment affords the broadest protection to such political expression in order 'to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" However, in Morse v. Frederick, the defendant claimed the slogan "BONG HiTS 4 JESUS," which was displayed on a sign across the street from the school during the 2002 Winter Olympics torch relay, was intended to provoke amusement or disgust but not advocate anything. However, the Supreme Court ruled it could be punished under the school speech doctrine because a reasonable person could interpret it as advocating illegal drug use, which was against school policy. Elon and his followers might think his humor is open and obvious, and that free speech is absolute, but it never has been.
Allowing deepfakes in political speech can have devastating consequences. Impersonated political candidates could very well tip elections. Elon Musk and Mark Zuckerburg would prefer the ball be in their court to regulate this content. Entrusting billionaire owners of social media platforms that reach the majority of the global population and whose very business model is to maintain people on the platform by way of sensationalism is a bad idea. Civil liability and fact finding in a court of law is the freedom the internet mob should be supporting instead of their benevolent tongue in cheek media barrons.
It is convenient to think that by killing the head of the snake with fire and fury, the gophers will leave the garden alone. Recent history in the Middle East has shown that scenario to not only be false, but instead, the gophers reemerge more emboldened and there are holes everywhere in the garden.
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