147. Id. at 361. 148. See generally Lewis Sargentich, The First Amendment Overbreadth Doctrine, 83 H ARV . L. R EV . 844, 845 (1970) (describing the presumption that courts have against statutes that curtail a broad array of expressive activity). 149. N.Y. Times v. Sullivan, 376 U.S. 254 (1964) (imposing actual malice requirement on libel claims brought by public officials to ensure that public discussion could be robust, uninhibited, and wide open). 150. For a superb discussion of the constitutional significance of lies in the aftermath of Alvarez , see Alan Chen & Justin Marceau, High Value Lies, Ugly Truths, and the First Amendment , 68 V AND . L. R EV . 1435, 1441 (2015). See generally Geoffrey R. Stone, Kenneth Karst’s Equality as the Central Principle in the First Amendment, 75 U. C HI . L. R EV . 37, 43 (2008) (discussing two-level theory of the First Amendment that treats high value speech with stringent protections and second tier of speech that falls outside the First Amendment’s coverage). The Court, in Hustler Magazine v. Falwell , struck down an intentional infliction of emotional distress claim based on a fake advertisement in the defendant magazine suggesting the Reverend Jerry Falwell lost his virginity to his mother. The Court refused to uphold the claim because there was no proof of actual malice — that defendant knew the advertisement was false or was reckless as to its truth or falsity. Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
Electronic copy available at: D EEP F AKES (**DRAFT**) 33 In 2012, in United States v. Alvarez , 151 the Court went even further. Eight Justices, writing in plurality and concurring opinions, concluded that “falsity alone” does not remove expression from First Amendment protection. 152 The Court held that barring the application of an exception to the First Amendment’s protections, false statements can be regulated only insofar as defendants intend to cause “legally cognizable harm” and a direct causal link existed between the “restriction imposed and the injury to be prevented.” 153 This would seem to preclude a sweeping ban on deep fakes, yet it leaves considerable room for carefully tailored prohibitions of certain intentionally harmful deep fakes. As the Court acknowledged in Alvarez , certain categories of speech are not covered by the First Amendment due to their propensity to bring about serious harms and their slight contribution to free speech values. 154 Some deep fakes fall into those categories. Categories of unprotected lies include the defamation of private persons, fraud, and impersonation of government officials. 155 For the same reason, speech integral to criminal conduct and the imminent-and-likely incitement of violence enjoy no First Amendment protection. 156 Deep-fake bans particular to these scenarios have brighter prospects for surviving constitutional challenge. And, for much the same reasons, this rifle-shot approach to criminal and civil liability results in a more attractive balance of costs and benefits from the normative perspective. And so we turn now to a discussion of specific possibilities, starting with civil liability.
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