This week, a federal judge halted enforcement of a California law targeting election misinformation. The ruling places an injunction on the law, which critics argued violated Californians’ First Amendment rights.
The law, Assembly Bill 2839 makes it illegal for an individual to produce “knowingly distributing an advertisement or other election communication, as defined, that contains certain materially deceptive content,” within 120 days of an election and up to 60 days after. Affected candidates can file for a civil action enjoining distribution of the media, and seek damages from its creator.
The bill was signed into law last month. That same day, content creator Christopher Kohls filed a lawsuit arguing the law was overbroad, violating his First Amendment rights to make parody content. Kohls has a YouTube channel with more than 300,000 subscribers, and his videos often consist of political parodies featuring political candidates seemingly mocking themselves.
On Wednesday, Judge John A. Mendes, a judge on the United States District Court for the Eastern District of California, sided with Kohls, ruling that the law doesn’t pass constitutional muster because it does not use “the least restrictive means available for advancing the State’s interest.”
“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,” Mendez’s opinion reads. “AB 2839 is unconstitutional because it lacks the narrow tailoring and least restrictive alternative that a content based law requires under strict scrutiny.”
Mendez’s ruling argues that the law, which is aimed at cracking down on “deepfakes” and other forms of false speech intended at misrepresenting an opponent’s views and actions, ends up making illegal a much wider range of speech than these specific statements.
“While Defendants attempt to analogize AB 2839 to a restriction on defamatory statements, the statute itself does not use the word ‘defamation’ and by its own definition, extends beyond the legal standard for defamation to include any false or materially deceptive content that is ‘reasonably likely’ to harm the ‘reputation or electoral prospects of a candidate.'”
While the law did contain a provision exempting parody content that contains a disclosure, the requirement was onerous, mandating that it be “no smaller than the largest font size of other text appearing in the visual media.”
Just one part of the law was found to pass constitutional muster—a requirement audio-only media be disclosed at the beginning at the message, and every two minutes during the duration of the content.
“While the Court gives substantial weight to the fact that the California Legislature has a ‘compelling interest in protecting free and fair elections,’ this interest must be served by narrowly tailored ends.” Mendez writes. “Supreme Court precedent illuminates that while a wellfounded 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.”
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