(Christopher Kohls v. Rob Bonta, et al., No. 24-2527, E.D. Calif.)
(Opinion available. Document #46-241113-005Z.)
The judge issued the opinion on Oct. 2.
Digital content creator Christopher Kohls filed suit in the U.S. District Court for the Eastern District of California claiming that recently enacted Assembly Bill 2839 violates the constitutional protections for speech. Kohls often goes by the name MrReagan online and posts content of politicians mocking their own campaigns. Some of that content is created using AI. In one such post, Kohls used AI to digitally alter video of Democrat U.S. president candidate Kamala Harris to make it appear as if she referred to herself as a diversity hire, among other things.
AI-Generated Content
Kohls claimed that AB 2839 allowed any politician who believed that they were the subject of AI-generated videos within 120 days prior to an election or 60 days after the election to file suit for damages and injunctive relief. AB 2839 was enacted Sept. 17, and Kohls filed suit and moved for a preliminary injunction the same day.
Named as defendants are Rob Bonta in his official capacity as attorney general of California and Shirley N. Weber in her official capacity as California secretary of State (collectively, California).
Judge John A. Mendez granted Kohls' request for a preliminary injunction.
While California has a valid interest in protecting the electoral process, the bill goes too far, and Kohls has shown that he will likely succeed with his claims, Judge Mendez said. “AB 2839 does not pass constitutional scrutiny because the law does not use the least restrictive means available for advancing the State’s interest here. As Plaintiffs persuasively argue, counter speech is a less restrictive alternative to prohibiting videos such as those posted by Plaintiff, no matter how offensive or inappropriate someone may find them,” Judge Mendez said.
California attempts to argue that the bill is no different than restrictions on defamation, Judge Mendez said. Despite California’s attempts at such a position, the measure never mentions defamation. The law also punishes content that could undermine confidence in elections, Judge Mendez said.
Harm
At best, these standards would be subjective and difficult to ascertain, Judge Mendez said.
Even limiting AB2839 to known falsehoods that caused tangible harms, the law would likely run afoul of the First Amendment, U.S. Const. amend I, Judge Mendez said. The First Amendment protects the right to criticize the government. That remains true even for new technology where users can manipulate content, Judge Mendez said. Civil penalties for such conduct like those in AB2839 “have no place in our system of governance,” Judge Mendez said.
Judge Mendez said AB2839 does not pass the strict scrutiny test that requires that any restrictions on speech to be narrowly tailored.
“Supreme Court precedent illuminates that while a well-founded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment,” Judge Mendez said. Today’s YouTube videos and other social media posts are simply yesterday’s newspaper advertisements and political cartoons, Judge Mendez analogized.
Restrictions
AB2839 itself references a less restrictive means of accomplishing its goals through the creation of a safe harbor for manipulated content containing a disclaimer, Judge Mendez said. A disclaimer requirement could pass constitutional muster, Judge Mendez said.
But the disclaimer safe haven here does not, Judge Mendez said. AB2839 requires that any digitally manipulated content contain a disclosure for the length of the content and that the disclaimer be no smaller than the largest type used in the content. But this requirement would obstruct nearly all of Kohls' content and render his videos “almost unviewable,” Judge Mendez said.
Kohls also successfully demonstrated that his content is a target of AB2839 and that he faces potential civil penalties from the law, Judge Mendez said. The harm Kohls faces is not outweighed by any public interest in AB2839, Judge Mendez said.
Judge Mendez declined California’s invitation to sever the unconstitutional portions of the law, saying critical portions of AB2839 creating penalties under California Election Code Section 20012(b)(1)(A)-(D), Cal. Election C. § 20012(b)(1)(A)-(D), are invalid.
“Against this backdrop, the Court does not enjoin the state statute at issue in this motion lightly, even on a preliminary basis. However, most of AB 2839 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,” Judge Mendez said.
Protect Democracy Project filed an amicus curiae brief in support of neither party.
Counsel
Kohls is represented by Theodore H. Frank and Adam E. Schulman of Hamilton Lincoln Law Institute in Washington, D.C.
California is represented by Attorney General Rob Bonta, Supervising Deputy Attorney General Anya M. Binsacca, Anna Ferrari and Kristin A. Liska of the California Department of Justice in San Francisco.
Protect Democracy is represented by John Langford and Nicole Schneidman of Protect Democracy in New York.
(Additional documents available: Kohls' motion for preliminary injunction. Document #46-241113-006M. California’s opposition. Document #46-241113-007B. Kohls' reply. Document #46-241113-008B. Protect Democracy’s amicus brief. Document #46-241113-009B. Complaint. Document #46-241113-010C. AB 2839. Document #46-241002-075L.)