There is nothing more fundamental to our nation than the freedom to discuss politics, whether face-to-face or through social media platforms. Yet even though political speech—including the right to make fun of politicians—is the cornerstone of our First Amendment freedoms, an online content creator and a politician are facing censorship for creating and reposting political parodies. SLF is stepping in as amicus to support their case before the Eighth Circuit Court of Appeals.
A Minnesota state law bans people from using AI to create “deepfakes” that depict someone in such a realistic way that a reasonable person wouldn’t be able to tell the difference. An online content creator posted several parody “campaign ads” for Kamala Harris in 2024 using AI-generated features like voice imitations. One video went viral, and although the original title said “Parody,” reposts of the video did not include the title. The creator faces up to 5 years in jail in Minnesota if he is found guilty of violating the deepfake law, so, represented by the Hamilton Lincoln Law Institute, he took preemptive action to bring a First Amendment lawsuit against the statute together with a state representative who reposted his video.
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A panel of judges on the Eighth Circuit Court of Appeals held that the content creator could not bring a First Amendment lawsuit because his videos are parodies, which do not count as deepfakes under the Minnesota law. They reached a similar conclusion that the state representative could not bring a First Amendment lawsuit. Now, the plaintiffs are seeking a rehearing by the entire Eighth Circuit over their political speech claims.
In its amicus brief supporting the plaintiffs together with Liberty Justice Center, SLF explains how the Eighth Circuit panel did not stick to the text of the Minnesota law when deciding the issue. Textualism requires looking at the text of a law as it is written. “Textualism…rejects broadening or narrowing the reach of a statute to capture what a judge thinks a legislature meant instead of what the words say.” Here, the Eighth Circuit inferred a parody exception to the Minnesota deepfake law, even though parodies are never mentioned in the statute. The plaintiffs should be able to challenge the law because the Kamala Harris video arguably falls within its limits.
Worse, the Eighth Circuit departed from settled First Amendment precedent that a speaker can challenge any law that could be enforced against him, even if it has not actually been enforced yet. First Amendment protections are meant to be broad, but, as SLF warns, the Eighth Circuit is improperly narrowing them and should revisit its opinion.