First Amendment Wins as Court Strikes California's AI Election Deepfake Law

Post Babylon Bee 1, California 0: Court Strikes Down Law Regulating Election-Related AI Content

AI has lowered the cost of producing convincing media. It also makes election misinformation easier to scale. A recent decision in Babylon Bee v. Bonta confronted that tension and held the line: AI does not justify relaxing First Amendment protections.

The court struck down California's AB 2839, a statute aimed at "materially deceptive" AI-generated election content. It applied strict scrutiny, acknowledged the state's compelling interest in election integrity, and still found the law unconstitutional.

What AB 2839 Tried to Regulate

The statute targeted "synthetically edited or digitally altered" audio or video that a reasonable viewer would believe is authentic. It covered depictions of candidates, elected and election officials, voting machines, and ballots. Liability attached where content was "reasonably likely" to harm a candidate's electoral prospects or undermine public confidence.

AB 2839 included exceptions for candidates creating deepfakes of themselves and for satire or parody, but only if speakers added prominent disclaimers stating the content was manipulated. Formatting rules for those disclaimers were strict, particularly on mobile.

Why the Law Failed Strict Scrutiny

Because AB 2839 was content-based, strict scrutiny applied. The court recognized a compelling state interest in protecting election integrity. But the law was not narrowly tailored and was overbroad in multiple ways.

First, it did not require actual harm. The standard-"reasonably likely" to cause material harm-punished speech on predictive risk, not proven injury. That's a significant departure from established doctrines like defamation and fraud, which require falsity, fault, and concrete harm.

Second, standing was expansive. Any recipient of allegedly deceptive content could sue, not just the candidate or directly injured party. That structure deputized private "censorship czars," creating a predictable chilling effect on political speech at the very moment it warrants the most protection.

Third, the "safe harbor" for satire or parody compelled speech. Mandatory disclaimers-especially those that occupy the entire screen on mobile-would drown out the speaker's message. For political and satirical speech, compelled labeling is a heavy constitutional lift, not a clerical fix. See content-based regulation and strict scrutiny as reinforced in Reed v. Town of Gilbert and the prohibition on compelled editorial speech in Miami Herald v. Tornillo.

The Court's Alternative Path: More Speech, Not Censorship

The court emphasized counter-speech and market solutions. It credited crowd-sourced fact-checking like X's community notes and AI tools such as Grok as scalable, non-coercive responses to deceptive media. It also pointed to public education: states can fund AI literacy programs and coordinate counter-speech without penalizing speakers.

Bottom line: political speech sits on the "highest rung" of First Amendment protection. Election integrity matters, but it cannot be secured with broad prior restraints, compelled disclaimers that bury the message, or private rights of action that incentivize nuisance litigation.

Practical Takeaways for Legal Teams

• For state and local lawmakers: If you legislate around deepfakes, avoid content-based triggers where possible. Target conduct (fraud, impersonation, deceptive robocalling) with intent and actual harm requirements. Narrow standing to directly injured parties. Be cautious with disclaimers; they can become compelled speech when applied to political or satirical content.
• Drafting tips: Define prohibited acts with precision; include mens rea; require material falsity and demonstrable harm; consider safe harbors that do not mandate intrusive labels; and document why less restrictive alternatives fail before imposing speech burdens.
• For campaigns and political committees: Build rapid-response teams for counter-speech. Use content authentication, provenance tools, and voluntary watermarks. Maintain audit trails for media so you can rebut deepfakes quickly with verified originals.
• For platforms, publishers, and ad networks: Invest in detection tools and user-facing context (notes, labels chosen by the speaker). Calibrate moderation to avoid suppressing protected political speech. Preserve logs to support transparency and appeals.
• For litigators: Expect early TROs and preliminary injunctions against broad deepfake laws. Center arguments on content-based regulation, narrow tailoring, overbreadth, and compelled speech. Distinguish commercial-speech disclosure cases from political and satirical contexts.
• For compliance and risk officers: Update election-cycle playbooks to prioritize counter-speech workflows over takedown-first approaches. Train staff on identifying synthetically altered media and on escalation paths that respect speech rights.
• For educators and bar associations: Scale AI literacy and provenance training. Public awareness reduces the efficacy of deceptive media without inviting constitutional risk. Consider partnerships with trusted training resources.

Policy Direction After Babylon Bee v. Bonta

Courts are signaling that familiar First Amendment rules still govern AI-era disputes. Laws that punish speech based on predicted harm, broaden standing far beyond injured parties, or compel intrusive disclaimers will struggle under strict scrutiny.

Less restrictive alternatives-counter-speech, transparency tools chosen by speakers, targeted fraud enforcement, and education-are not just policy preferences; they are constitutional guardrails. Legislators should document why these measures are insufficient before attempting speech restrictions.

Where Legal Teams Can Go Deeper

If you're advising policymakers or clients on AI and election law, stay current on provenance standards, disclosure frameworks that avoid compelled speech issues, and practical education initiatives. Curated AI education resources can help teams build those capabilities without overreliance on regulation.

For structured training on AI literacy and tooling, see the course directories at Complete AI Training - Courses by Job and the latest updates at Latest AI Courses.

The message from the court is clear: protect elections, but do it with precision. When speech is the problem, more speech-backed by tools, training, and targeted enforcement-remains the constitutional first move.