Lies, Line Drawing and (Deep) Fake News

Abstract

Just over twenty years ago, in 1998, science fiction writer and technologist David Brin warned, “One of the scariest predictions now circulating is that we are about to leave the era of photographic proof. . . . We are fast reaching the point where expertly controlled computers can adjust an image, pixel by microscopic pixel, and not leave a clue behind.” (David Brin, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? 28 (1998)). Now, many articles are reporting that a similar technological transformation is occurring in the realm of audio- and video recording. Legislators and legal scholars have begun asking what laws or technological measures can be used to protect the public from being deceived by “deep fake” videos.

This symposium essay considers how First Amendment free speech protection might apply to the creation of such videos – and how such protection might differ from the protection that the Supreme Court found, in 2012, applies to false statements of fact. First, it analyzes how courts have generally adhered to a well-established dichotomy in First Amendment treatment of false claims: In the commercial marketplace, government often stands ready to intervene to protect us against being sold forgeries or other fake goods. The same is true in certain situations where security is at stake, for example, where a fake ID might give a person unwarranted access to an airplane or a building off-limits to the general public. Matters are very different, by contrast in the marketplace of ideas. Here, individuals are largely on their own. Government may not constitutionally exile certain ideas from the free trade in ideas, as it can ban harmful goods or services from the realm of buying and selling. In the realm of free expression, wrote Justice Jackson, “every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Thomas v. Collins, 323 U.S. 516 (1945) (Jackson, J concurring). The justices in the 2012 case, United States v. Alvarez, disagreed about how to classify verifiably false autobiographical statement in this dichotomy (and thus disagreed about how to analyze Alvarez’s false claim to have won a Congressional medal of honor). But they largely agreed that false statements on matters of public concern should generally be treated as contributions to the marketplace of ideas, and receive staunch First Amendment protection – unless they constitute defamation, fraud, or some other legally-cognizable harm.

Having examined the Alvarez decision and certain difficulties that confront it, the essay then asks whether this First Amendment framework requires modification when the vehicle for deception is not merely a falsity but a forgery – that is, where it is not merely the content of the speech that is intended to deceive, but also its purported source or vehicle. A deep fake video, for example, does not simply present a false description of an event. It clothes such falsity in the authority of video evidence. The essay considers some of the reasons why the First Amendment should perhaps give government greater leeway to regulate fake video- or audio-recording than verbal lies - why, for example, a false statement about war-time actions might be protected speech, whereas a fake video of an event in that war allowing people to see with their own eyes, events which never occurred - might raise more significant concerns. Or why the false content in a fake news article may be protected speech but this may not be true of the false guise it wears as a New York Times, Chicago Tribune, or Washington Post article when neither publication played any role in it. The essay also briefly considers some of the difficulties that courts would face in attempting to differentiate in this way between falsity and forgery, and providing different First Amendment rules to each category of deception.

Keywords: First Amendment, Freedom of Expression, Fake News, Deep Fake, Deepfake, Freedom of Speech, Free Speech, Lies, Falsehoods, Deception, Forgery, Public Concern