Can we all agree that deepfakes should be outlawed? Apparently not, as the ACLU says you have a constitutional right to make deepfakes.

According to Wired (The ACLU Fights for Your Constitutional Right to Make Deepfakes, written by Arthur Holland Michel and available here), Human rights groups, led by the national American Civil Liberties Union and its state-level affiliates, are building a legal posture that seeks to narrow or even dismiss many of the new rules introduced in the US to regulate the use of deepfakes and other fraudulent uses of AI. The heart of the argument: Americans have a constitutional right to make deepfakes on their fellow citizens.

“Anytime you see large waves of bills attempting to regulate a new technology across 50 different state legislatures and God knows how many community ordinances, there’s going to be a fair number of them that draw the lines incorrectly,” Brian Hauss, a senior staff attorney with the ACLU Speech, Privacy, and Technology Project, told me. “So I have no doubt,” he went on, “there will be lots of litigation over these bills as they get implemented.”

The article draws an analogy to the “Thank God for Dead Soldiers” placard that members of the Westboro Baptist Church waved at a veteran’s funeral – for which the ACLU filed a legal brief in support of the church’s position to the Supreme Court, which ruled in the church’s favor.

Once a piece of legal speech exists—whether it’s a protest placard or a mean deepfake you made about your neighbor—First Amendment jurisprudence places strict limits on when, and why, the government can act to hide it from the view of others. “Imagine a world where the government did not restrict who could speak but restricted who could listen,” Cody Venzke of the ACLU’s National Political Advocacy Department says. “Those two rights have to exist together.” This idea is sometimes referred to as the “right to listen.”

By these criteria, many of the AI laws and regulations that have received bipartisan support across the country simply don’t pass constitutional muster. And there are a lot of them, including President Biden’s wide-ranging executive order on AI last October and the No AI FRAUD Act introduced back in January, which would grant property rights for people’s likeness and voice.

In interviews with WIRED, policy advocates and litigators at the ACLU noted that they do not oppose narrowly tailored regulations aimed at nonconsensual deepfake pornography. But they pointed to existing anti-harassment laws as a sturdy(ish) framework for addressing the issue. “There could of course be problems that you can’t regulate with existing laws,” Jenna Leventoff, an ACLU senior policy counsel, told me. “But I think the general rule is that existing law is sufficient to target a lot of these problems.”

This is far from a consensus view among legal scholars, however. As Mary Anne Franks, a George Washington University law professor and a leading advocate for strict anti-deepfake rules, told WIRED in an email, “The obvious flaw in the ‘We already have laws to deal with this’ argument is that if this were true, we wouldn’t be witnessing an explosion of this abuse with no corresponding increase in the filing of criminal charges.” In general, Franks said, prosecutors in a harassment case must show beyond a reasonable doubt that the alleged perpetrator intended to harm a specific victim—a high bar to meet when that perpetrator may not even know the victim.

Franks added: “One of the consistent themes from victims experiencing this abuse is that there are no obvious legal remedies for them—and they’re the ones who would know.”

While the ACLU supports more narrowly tailored rules against disinformation about the date, place, and time of elections, which it considers a form of voter suppression, it contends that citizens have a constitutional right to use AI to spread untruths, just as they do to lie on paper or in comments from the podium at a political rally. “Politics has always been mostly lies,” one senior ACLU staff member told the author.

It sure seems as though any efforts to try to regulate or eliminate deepfakes will be met by stiff opposition, from the ACLU and others. What about the rights of those impacted by deepfakes, like this guy?

Hat tip to Niki Black for sharing this article!

So, what do you think? Should you have a constitutional right to make deepfakes? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using GPT-4o’s Image Creator Powered by DALL-E, using the term “robot viewing a video of itself on a computer”.

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