Oversensitive politicians are trying to criminalize satirical images by labeling them ‘misinformation.’
Oversensitive politicians are trying to criminalize satirical images by labeling them ‘misinformation.’
I n December 1890, the Harvard Law Review published an essay wrestling with how an emerging technology — the photograph — would affect personal privacy in America.
“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life,” the article read, “and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-top.’”
The essay argues that taking and disseminating a photo of someone is a violation of one’s “right to be alone.” Would the law “afford some remedy for the unauthorized circulation of portraits of private persons”?
Proving that some issues are timeless, a number of states are now beginning to enact laws regulating whether citizens can post images and videos of celebrities and politicians on the internet. In some cases, states claim that these new laws prevent “misinformation,” regulating “deepfakes” and AI-created memes. In other cases, states are cracking down on “revenge porn” with broad laws that bar the posting of a wide range of photos of politicians.
Of course, in 1890, newspapers were primarily to blame for printing photographs that irritated the image’s subjects. But now everyone has an entire photo studio in their pocket that can be used to alter pictures and disseminate them widely. Which is why elected officials now want to crack down on satirical memes and posts that ridicule them.
In California, for instance, Governor Gavin Newsom recently signed a blatantly unconstitutional regulation on political speech that seeks to criminalize satirical memes and posts that don’t meet his standards. Earlier this year, when X owner Elon Musk posted a digitally altered video of Democratic presidential candidate Kamala Harris, Newsom declared that “manipulating a voice in an ‘ad’ like this one should be illegal.” He later signed a law doing just that.
Newsom’s censorship law claims to ban “materially deceptive” information in the lead-up to an election, claiming that an image or a video that has been altered could affect a politician’s “reputation or electoral prospects.” But in doing so, he is simply providing cover for incumbent politicians who may not like how they are being depicted online.
Further, the law is broad enough to cover obvious satire and parody, which is why online humor websites such as the Babylon Bee have filed a lawsuit challenging the new law. In its court filing, the Bee claims it is defending its “freedom to engage in critical political discussions and contribute their views to the marketplace of ideas.” Fortunately, there has already been one successful legal challenge to the law, with U.S. District Judge John Mendez finding it “does not pass constitutional scrutiny.”
Under Newsom’s law, some satire would be permitted as long as it contains the disclaimer that “this [image, audio, or video] has been manipulated for purposes of satire or parody.” The law dictates that the label must be “no smaller than the largest font size of other text appearing in the visual media,” which in some cases could take up the entire image, making it indecipherable to the reader.
In any event, the law is a response by soft-minded, easily triggered lawmakers who are angry at having lost control of their own public personas. And they think they can pack the toothpaste back into the tube by censoring their critics’ protected political speech.
The desire to censor photos and videos online isn’t limited to Democrats. In April, Republican Virginia governor Glenn Youngkin signed a so-called revenge-porn law that ostensibly made it more difficult to disseminate untoward and embarrassing photos of elected officials. The bill passed in the wake of an incident involving Virginia legislative candidate Susanna Gibson, who had been caught performing sex acts on a website called Chaturbate; she later argued that publications posting screen grabs from her public performance violated the state’s revenge-porn laws.
The Virginia legislature responded by expanding the state law to remove the requirement that photos must be posted with the “intent to coerce, harass, or intimidate,” and that the individual in the photo doesn’t have to be nude but can be “in a state of undress so as not to expose the genitals, pubic area, buttocks, or female breast” while the “videographic or still image is sexual or sensual in nature.” (Many of the blogs that posted about Gibson used more . . . uh . . . tasteful photos that didn’t expose the “full Gibson” but still demonstrated she was undressed.)
It appears that the entire purpose of the expansion of the revenge-porn law was to protect one woman, who was caught broadcasting sexually explicit material to the world, from public embarrassment. In doing so, the legislature is trampling on the First Amendment rights of media outlets and commenters who have something to say about Gibson’s lascivious activities. The public has the right to comment on the behavior of a public figure, and photos are protected political speech.
The desire to restrict visual speech by way of photos and videos has further made its way to Congress. Earlier this year, Representatives María Elvira Salazar (R., Fla.) and Madeleine Dean (D., Pa.) introduced the bipartisan No Artificial Intelligence Fake Replicas and Unauthorized Duplications (No AI FRAUD) Act, which would restrict the use of images of celebrities and politicians online.
While ostensibly written to weed out “AI-generated fakes and forgeries,” the No AI FRAUD Act is broad enough that it could criminalize parody videos, comedic impressions, and political cartoons.
Take, for example, the bill’s definition of “digital depictions,” which includes a “replica, imitation, or approximation of the likeness of an individual that is created or altered in whole or part using digital technology.” Someone’s “likeness” includes any “actual or simulated image . . . regardless of the means of creation, that is readily identifiable as the individual.”
As Reason’s Elizabeth Nolan Brown has noted, those definitions are broad enough to include reenactments in a true-crime show, a parody TikTok account, or depictions of a historical figure in a movie.
“They’re broad enough to include sketch-comedy skits, political cartoons, or those Dark Brandon memes,” she notes, adding, “They’re broad enough to encompass you using your phone to record an impression of President Joe Biden and posting this online, or a cartoon like South Park or Family Guy including a depiction of a celebrity.”
For centuries, technology has moved faster than the government’s ability to regulate it. That’s a good thing — it encourages innovation and is responsible for many of the new technologies that we enjoy every day. The government’s granting itself more power to determine which photos and videos amount to “misinformation” in order to protect elected officials thwarts both political speech and technological innovation. Let’s hope that people won’t be served prison time for creating an AI image of the government with its head planted firmly in its rear end.