Babylon Bee scores free-speech win as judge rejects Hawaii’s ban on election deepfakes

A federal judge has struck down a Hawaii law banning “materially deceptive” media and advertising in state elections, handing another First Amendment victory to the Babylon Bee.

U.S. District Judge Shanlyn Park found that the 2024 law known as Act 191 violates the First and Fourteenth amendments with its ban on “materially deceptive media” that present a “risk of harming the reputation or electoral prospects of a candidate in an election” or changing “voting behavior.”

“Upon review of the record in conjunction with the relevant legal authorities, the Court finds that Act 191 discriminates based on content and speaker and, in doing so, restricts constitutionally protected political speech, making Act 191 presumptively invalid and subject to strict scrutiny,” said Judge Park, a Biden appointee, in her Friday decision.

She granted the motion for summary judgment filed by the Babylon Bee, the conservative Christian satirical site known for its send-ups of politicians and other public figures, and Dawn O’Brien, a Hawaii resident who has posted Babylon Bee content on her social-media pages.

The law signed by Democratic Gov. Josh Green banned deceptive AI-generated content in state elections unless the video, audio or images include a prominent disclaimer “informing the viewer that the media has been manipulated by technical means and depicts appearance, speech, or conduct that did not occur.”

Those violating the law during the prescribed period — February through November in even-numbered election years — were subject to criminal prosecution, fines and even jail time.

The Legislature found that “regulating the use of deepfake and generative AI technologies to influence elections is necessary to protect the democratic process in the State,” but the judge said there are less restrictive means of accomplishing that goal.

“State Defendants have failed to demonstrate that increasing the digital and political literacy of the electorate through educational campaigns would be less effective than Act 191,” Judge Park said in her 38-page ruling.

The judge also found that the Hawaii law “imposes a risk assessment based solely on the value judgments and biases of the enforcement agency — which could conceivably lead to discretionary and targeted enforcement that discriminates based on viewpoint.”

The decision comes with state legislatures wrestling with how to safeguard election security without violating the First Amendment as advances in AI-generated technology make it easier to alter the images and voices of candidates.

More than half of states have enacted such legislation, according to Public Citizen, the consumer-advocacy group founded by Ralph Nader that has pushed for restrictions on AI-generated deepfakes in election communications.

So far, however, striking the balance between banning fake political ads and protecting free speech has proved tricky.

In August, a federal judge banned the enforcement of California’s law in response to a lawsuit filed by the Babylon Bee and online platforms X and Rumble, ruling that the state cannot “preemptively sterilize political content.”

Babylon Bee CEO Seth Dillon cheered the Hawaii decision as “yet another victory for the First Amendment and for anyone who values the right to speak freely on political matters without government interference.”

The Hawaii law included exceptions for broadcast networks, cable operators and certain other providers, but legislators rejected requests to add an exemption for “parody and satire,” according to the Alliance Defending Freedom, which represents the plaintiffs.

Mathew Hoffman, ADF legal counsel, said the “court is right to put a stop to Hawaii’s war against political memes and satire.”

He added in a statement, “The First Amendment doesn’t allow Hawaii to choose what political speech is acceptable and censor speech in the name of ‘misinformation.’ That censorship is both undemocratic and unnecessary.”