“The coronavirus, this is their new hoax.” That’s what Donald Trump says—or at least appears to say—in a new political ad airing in states across the country.

The ad, created by a Democratic super PAC, strings together audio from various Trump speeches discussing the coronavirus. The spliced-together audio plays while a graph, representing the number of coronavirus cases in the U.S., grows exponentially in the background. The ad ends with audio and video of Trump declaring, “No, I don’t take responsibility at all.”     

According to the Trump campaign, the sequence at the beginning of the ad—the “hoax” part— is “false, misleading, and deceptive,” because the audio used in the ad was edited to “fraudulently and maliciously imply” that Trump called the coronavirus a “hoax.” The audio for that snippet was apparently taken from a single speech, given at a February rally in South Carolina; but several sentences—occurring after Trump said “coronavirus” and before he said “this is their new hoax”—were edited out.

Last week, the Trump campaign filed a defamation lawsuit against a small TV station in Wisconsin that was running the ad. We think this lawsuit has little chance of succeeding. But the legal merits are almost irrelevant, since it may still have its intended effect: stifling criticism of the president and deterring other TV stations from carrying the ad. The Trump campaign threatened a second TV station over a separate ad. 

Unfortunately, a wave of new state laws is likely to increase the frequency of this kind of lawsuit, and even the threat of criminal prosecution, by entrenched powers looking to preserve their political advantage.

The threat? Political “deepfakes” laws.

Broadly speaking, these laws prohibit the creation and publication of political videos or images that contain media that has been manipulated in some meaningful way. Many of these laws were hurriedly introduced in 2019, spurred by a now-infamous video of Nancy Pelosi that had been altered to make it appear as if she was slurring her words. So far, two states, California and Texas, have laws on the books, and several other states have laws under consideration.

Although the motivations behind these laws might be pure, the “hoax” ad, and the Trump campaign’s response, show how these laws could be abused in the future—and why EFF is so concerned.

“[A] Real Person Performing An Action That Did Not Occur In Reality”

Let’s look at Texas’s law, which makes it a Class A misdemeanor for a person to create and publish a “deep fake video” within 30 days of an election. The creator of the video must have the intent to “injure a candidate” or to “influence the result of an election.” Convictions are punishable by a fine or up to a year in prison.

The law’s definition of “deep fake video” is not what you might think: it doesn’t require the video be made with artificial intelligence, machine-learning, or any other sophisticated technology. Instead, a “deep fake video” is any “video, created with the intent to deceive, that appears to depict a real person performing an action that did not occur in reality.”

Like many legislative attempts to prohibit political ‘deepfakes,’ Texas’s law is hopelessly overbroad. For example, the law could conceivably criminalize the use of fiction or dramatizations in political videos. One of the most influential American political ads of all time—“Daisy”—appears to depict a real person performing an action that did not occur in reality: in the ad, a young girl picks a flower right before a nuclear bomb detonates. The ad was created by Lyndon Johnson’s political campaign to “injure” a political candidate, Barry Goldwater, and to “influence the result of the election.” And, Republicans, at the time, charged that the ad was a “panic-inspired falsehood[]” aimed at “scaring the wits out of children in order to pressure their parents”—a charge that sounds suspiciously like an “intent to deceive.” If this law were on the books in the 1960s, the creators and publishers of the video on LBJ’s campaign might have been charged with a crime. 

Beyond that, the law risks criminalizing political videos that rely on common filmmaking techniques. Adding dramatic music, sound effects, or narration; using black and white images instead of color; and editing and piecing together video and audio are all regularly used in political videos. But these editing techniques, to varying degrees, might result in a product that does not strictly depict “reality.” Take, for example, this video Michael Bloomberg’s campaign created, which contains edited footage from a Democratic debate that appears to depict the other Democratic candidates struggling to answer a question. If the people creating this video had the “intent to deceive,” creating and publishing that video might be a crime in Texas, too. And Bloomberg’s is hardly the first campaign to use some type of misleading editing or effects in a political ad.

The "Hoax" Ad Shows All the Problems With Texas’s Law

There’s no question that the “hoax” ad, if aired within 30 days of an election, could plausibly satisfy all the elements of Texas’s statute. That’s a serious problem for free political expression.

First, the “hoax” ad was obviously created and published. Second, the ad—like any negative political ad—was distributed with the intent to “injure” a political candidate, Donald Trump, and to “influence the results of an election.” And, finally, the ad “appears to depict a real person” (Trump) performing an “action” (saying, in a single sentence, “The coronavirus, this is their new hoax”) that, strictly speaking, did not “occur in reality.” Or, at least, it didn’t occur in the way the ad makes it seem.

The only remaining element is whether the creators had the requisite “intent to deceive.” The Trump campaign says splicing the audio together is intentionally misleading because, if provided with the full context of Trump’s remarks, “it is clear that ‘this’ [as in, ‘this is their new hoax’] does not refer to the coronavirus and instead refers directly to the Democrats’ politicization of the pandemic.”

But it’s not at all “clear.” Even fact checkers can’t agree. The Washington Post gave the “hoax ad” “Four Pinocchios,” signaling it agreed with the Trump campaign that it was false. Snopes concluded the claim had “significant elements of truth and falsity.” Major media outlets, on the other hand, published stories consistent with the ad—that Trump had labeled the coronavirus a “hoax.”  

The First Amendment Does Not Allow Criminal or Civil Liability Over “This”

You can see the full context for Trump’s remarks here and decide for yourself. But how you interpret what Trump said might reveal more about your own views than it does provide some authoritative interpretation: If you tend to support Trump, you’re probably inclined to think “this” referred to a criticism of Democrats; if you tend to oppose Trump, you’re probably inclined to think “this” referred to the whole outbreak.

And that’s exactly why a question like what “this” means shouldn’t be given to a criminal jury in Texas—or any other state, for that matter: political truths are often in the eye of the beholder.

As the Supreme Court has recognized, the First Amendment “protects expression and association without regard to the race, creed, or political or religious affiliation;” but it likewise protects expression without regard to the “truth, popularity, or social utility of the ideas and beliefs which are offered.” Full and robust political expression requires “breathing space” —­ and that includes space even for false or misleading political speech. “Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth.”

Texas’s law gives prosecutors a broad power to censor political speech those prosecutors disagree with. And the power to enforce this type of law will inevitably be used against those without power, regardless of their political affiliation. In fact, the sitting mayor of Houston already called for prosecutors to investigate a political opponent for violating the law. That’s a power we can’t entrust to any government—whether it’s prosecutors in Texas or California, New York or Florida.

Texas’s law violates the First Amendment, and we intend to ensure that it—and other laws like it—can’t be used to silence government critics and otherwise chill political expression.  

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