Gavin Newsom Battles Deepfake Parrots
Governor champions the interests of Californians incapable of recognizing humor
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FRAGILE CALIFORNIAN SYNDROME (FCS)
Apparently, a sizable number of California voters share a genetic trait stunting their capacity to recognize political satire and parody—a disability greatly augmented by the use of artificial intelligence (A.I.). On September 17, Governor Gavin Newsom signed legislation (AB 2355, AB 2655, AB 2839), designed “to remove deceptive content from large online platforms, increase accountability, and better inform voters.” These laws would require that certain audio and video materials be clearly marked as “parody” or “satire.”
AB 2355 requires producers of election-related content to “clearly disclose” when materials have been generated or altered via A.I. AB 2655 requires platforms like X (Twitter) and Facebook to monitor users’ posts and remove or label offending materials. AB 2839 expands the definition of election-related content, stretches the timeframe for restrictions, and (given the “urgency” of 2024’s elections) implements said restrictions immediately. The laws would, no doubt, be enforced in the same logically consistent, fastidiously evenhanded manner we now expect of newspaper fact-checkers, debate moderators, and university administrators.
In light of Californians’ collective cognitive infirmity, it’s important to inform them that the images atop this column are SATIRE AND/OR PARODY. In no literal sense is their governor a turnip, soap box logo, squid, cartoon clown, avocado, canister of hair gel, tuba, carrot, jar of kombucha, or long-ago Pennsylvania Governor caricatured as a parrot. Further, the above collage was produced WITHOUT A.I. as Bastiat’s Window did not wish to visit the West Coast courtesy of some George Soros marionette’s extradition papers.
The California legislation has been under constant assault, even before Newsom signed the bills. Internet provocateur Christopher Kohls purposefully flouted the legislation with videos lampooning Kamala Harris. X owner Elon Musk shared Kohls’s parodies, yielding over a hundred million views. A public interest law firm filed a lawsuit against the state on Kohls’s behalf. Legal scholars blasted California’s laws as violating the First Amendment guarantees of free speech and press. And a federal judge issued a preliminary injunction halting the legislation’s enforcement. More on these developments below, but first a look at the giant upon whose shoulders Gavin Newsom stands—Pennsylvania Governor Samuel W. Pennypacker (1903-1907).
“PSITTACINE PENNYPACKER” or “A PARROT-Y PARODY”
In 1903, Governor Pennypacker was outraged that cartoonist Charles Nelan and others repeatedly caricatured him as a parrot. (He was said to be a mere tool of his party boss and cousin, U.S. Senator Matthew Quay—repeating whatever words Quay had instructed him to say.)
And so, Pennypacker—the Keystone State’s noblest psittacine—raged in his inaugural address that:
“sensational journals [are a] terror to the household, a detriment to the public service and an impediment to the courts of justice.”
He denounced “the sensational devices and the disregard of truth” by the press and campaigned for redress. The legislature complied by passing the Salus-Grady libel law—popularly known as the “Anti-Cartoon Act.” Salus-Grady specifically outlawed:
“any cartoon or caricature or picture portraying, describing or representing any person, either by distortion, innuendo or otherwise, in the form or likeness of beast, bird, fish, insect, or other unhuman animal, thereby tending to expose such person to public hatred, contempt, or ridicule.”
To Pennypacker’s chagrin, the law backfired spectacularly, in an antediluvian version of the Streisand Effect (where attempts to censor information ironically lead to wider publicity). With animal caricatures forbidden, Nelan and other cartoonists relentlessly portrayed Pennypacker and his allies as vegetables and other inanimate objects. (Below, Pennypacker is a beer stein whose dripping foam forms his beard.) The ridicule continued for the remainder of Pennypacker’s term, and his successor swiftly signed legislation repealing Salus-Grady.
(For more, see “When Cartoonists Were Criminals” from the Historical Society of Pennsylvania—of which Pennypacker served as president.)
BACK TO 2024
But let’s get back to present-day efforts to legislate limits on humor. Here’s a brief chronology of California’s new laws and their blowback.
MID-FEBRUARY: AB 2355, AB 2655, and AB 2839 introduced in the California State Legislature.
JULY 26: Christopher Kohls (a.k.a., “Mr Reagan”) posts an A.I.-generated parody on X/Twitter and YouTube in which Kamala Harris appears to explain (in her own voice) why she and Joe Biden are both manifestly unqualified for the presidency. One would have to be denser than a neutron star to believe the video was authentic Harris campaign material, and Kohls clearly labeled the video “Kamala Harris Campaign Ad PARODY.”
JULY 27: Elon Musk reposted Kohls’s video, writing “This is amazing <laugh emoji>. As of 10/5/24, his repost has garnered over 136 million views. Kohls’s video is of more than academic interest to Musk, since AB 2655 would require his company to police every post by Kohls and by everyone else posting political content on X—and rendering Musk and X legally liable for failing to do so.
JULY 28: Newsom said of Kohls’s video that:
“Manipulating a voice in an ‘ad’ like this one should be illegal. … I’ll be signing a bill in a matter of weeks to make sure it is.”
SEPTEMBER 17: Newsom signs the bills and posts his announcement on X, slamming Musk and Kohls a second time. To reiterate, the governor was boasting of making it illegal to post materials that are clearly jokes and which are clearly labeled “parody.”
“I just signed a bill to make this illegal in the state of California. … You can no longer knowingly distribute an ad or election communications that contain materially deceptive content—including deepfakes.”
SEPTEMBER 17: Minutes after Newsom signed the bills, the Hamilton Lincoln Law Institute (HLLI) filed a lawsuit on behalf of Kohls, challenging the constitutionality of AB 2839 and AB 2655. According to HLLI:
“AB 2655 enlists social media companies to censor their users’ protected political speech that is created using Generative AI tools to spoof the likeness of political candidates running for office. It imposes a reporting and take-down regime on large online platforms like YouTube and X … for ‘deceptive content,’ which goes into effect January 1.
AB 2839 goes into effect immediately and purports to ban all election communication that uses artificial intelligence (AI) to portray candidates for office as ‘doing or saying something that the candidate did not do or say.’ While the title of the bill refers to ‘advertisements,’ in fact it covers all ‘election communication,’ including political and satire, which are protected under core First Amendment principles. AB 2839 contains no exception for satire and parody—the legislature removed this exception in coordination with Newsom’s office, and replaced them with a labelling requirement that would require a disclaimer so large it could not even fit on Kohls[‘s] videos.”
SEPTEMBER 19: The Foundation for Individual Rights in Education (FIRE), a free-speech/free-press advocacy group, condemned the new legislation:
“In targeting ‘deceptive’ political content, California’s new law threatens satire, parody, and other First Amendment-protected speech. … A.B. 2839 bans sharing ‘deceptive’ digitally modified content about candidates for office for any purpose. That means sharing such content even to criticize it or point out it’s fake could violate the law. … The law also requires satire and parody to be labeled, like requiring a comedian to preface every joke with an announcement he’s making a joke. That’s not funny — it’s scary.”
SEPTEMBER 23: Law blogger Eugene Volokh notes that prior to September 17, California law already provided legal protections against materially deceptive content—the difference being that prior law aimed to protect people other than complete idiots:
“If a reasonable person would see the media as a satirical alteration, rather than as straight-up reporting, then it's not “materially deceptive.’”
OCTOBER 2: In Kohls v. Bonta, Federal Judge John A. Mendez issued a preliminary injunction blocking implementation of AB 2839, which makes the new legislation immediately applicable. Judge Mendez wrote:
“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’s order is temporary, with the legislation’s final status to be determined by subsequent litigation.
FINAL THOUGHT
P.S.: I share with Governor Newsom the notion that A.I. can be deceptive and dangerous. The difference is that I have an even greater fear of empowering politicians like Newsom (or, say, Donald Trump) to censor speech on my behalf. (See my article, “The Talented Doctor Ripley (GPT): When Artificial Intelligence Lies about Medicine.”)
LAGNIAPPE
BIDEN: “THE INTERNET IS EXEMPT FROM HONESTY” … TRUMP: “HEY, EVER EAT A POODLE?”
You don’t need A.I. to produce the parodies and satires and other aspects of our modern world that frighten and confuse Gavin Newsom and the voters of his state. Around 2012, a long series of parody videos appeared on YouTube under the banner of “Bad Lip Reading” (BLR). These are political and music videos with the words replaced as if crafted by an incompetent lip-reader. In fact, BLR’s producer is an anonymous videographer who was unable to master lip-reading—a skill his mother mastered after losing her hearing in her 40s.
In BLR’s “Biden 2020,” the 46th president says things like, “I think guac stains everything. I powerwash it, but it will never get off of me. Green weird thing,” and “The Internet is exempt from honesty.” In BLR’s “Trump in Asia,” the 45th president farts onstage and tries to persuade Vladimir Putin and the audience that Putin did it. (Putin responds with, “Nobody believes I did it.”) Trump asks a fellow G-7 leader (not a Haitian refugee in Ohio), “Hey, ever eat a poodle?”
To be fair, given the verisimilitude of these quotes, it’s understandable that many California voters would not recognize these videos as parodies.
For a spectacular non-political example of BLR, watch Michael Bublé’s sweet, sentimental music video “Haven't Met You Yet,” and then watch BLR’s version—the pulsating, electronica-inspired “Russian Unicorn.” Bublé called the parody his “new favorite song” and “one of the coolest things I've ever seen.”
It's fun to mock Californians for their witlessness. There is also a serious problem with AI generated fakes. For example:
https://www.npr.org/2024/04/26/1247237175/baltimore-ai-generated-racist-audio-crime
Briefly, a Maryland school principal suddenly had to confront an audio recording of himself saying vile racist things. He was hounded, his family was harassed, and he had to move to another job in the district. But even now, with the recording established as fake, the principal still has to fend off attacks by those who haven't gotten the latest, or worst, don't want to believe that the recording was fake. Such aftermaths are a big driving force in journalism today, and a principal reason for the low esteem the press is facing these days.
So. Does First Amendment protect such a recording. Ferociously tough question:
a) if yes, the victims will have to pay an appallingly high price
b) if, no what principle do you use to determine if a crime has been committed? Is it false? It would be easy to round up a hundred journalists who would swear that the Hunter Biden laptop is fake, and twice as many intelligence "professionals' to back them up.
Many thanks for the Pennypacker appetizer in this fine post.
"Apparently, a sizable number of California voters share a genetic trait stunting their capacity to recognize political satire and parody—a disability greatly augmented by the use of artificial intelligence (A.I.)"
Well, they've been electing super majorities of Far Left legislators for a couple of decades, and those people's motto might as well be, "That's not funny!"