Politicians are upset, beside themselves, worried and all manner of concerned about the latest horror to be unleashed on political campaigns. No, it isn't robo-dialing or door knockers. It's artificial intelligence “deep fake'” images and recordings that threaten, the pols believe, to undermine what few shreds of trust people have in politics.
And they intend to do it through legislation:
“States know that there's going to have to be some regulatory guardrails,” said Tim Storey, president and chief executive of the National Conference of State Legislatures, which convened the A.I. panel at a conference in December. “It's almost trying to figure out what's happening in real time.”
Which is another way of saying that lawmakers are late to the game, and the A.I. admakers – professional and amateur alike – are already miles ahead of the regulators.
But that will never stop some from trying to do what is akin to closing the barn door after all the horses have run away:
Some legislators have contemplated banning misleading A.I. ads altogether. But political ads generally are given a lot of latitude in what they can say, and to avoid any First Amendment challenges, most lawmakers have focused on requiring that those who make, produce or disseminate the ads disclose — in legible text or clear audio — that the deceptive ads were produced by artificial intelligence.
Many of the bills apply only to such ads that are released up to 90 days before an election, when voters are paying the most attention.
Good luck with that.
On the whole, though, one might be tempted – if only for a moment – to sympathize with the politicians trying to ensure that fake ads don't pollute the airwaves. There's an argument to be made – and so far, it's incumbents who have the most to lose making it – that such high-tech fakery has no place in our civic discourse.
But let's also be very clear about fakery in politics: they go together like peas and carrots.
As the great Brooks Jackson wrote way back in 2004, “…[c]andidates have a legal right to lie to voters just about as much as they want.”
It's not just the First Amendment that gives them this latitude. It's a host of court cases striking down various “truth in advertising” laws states passed to limit lying in political ads. Jackson notes examples of candidates straight-up lying in televisions ads and getting charged for it in state courts.
The state courts weren't having it. The Washington Supreme Court ruled in a truth-in-advertising case that the law against lying in campaign ads was unconstitutional:
Instead of relying on the State to silence false political speech, the First Amendment requires our dependence on even more speech to bring forth truth. … The First Amendment exists precisely to protect against laws such as [the Washington state truth-in-advertising law] which suppress ideas and inhibit free discussion of governmental affairs.
The dissenters wrote that the majority opinion made the court the first…
‘..in the history of the Republic to declare First Amendment protection for calculated lies' and said that his fellow judges were ‘shockingly oblivious to the increasing nastiness of modern political campaigns.'
Pity that judge for not having the ability to anticipate artificial intelligence churning out fakes like there was no tomorrow.
But really, pity that judge – nor the lawmakers seeking to curb A.I. — for not understanding (or refusing to admit) that there has never been a golden era of truth and accountability in politics. It is now, and always has been a (sometimes literally) bruising affair, with truth being the first thing to get flattened.
While mild restrictions like requiring a notice that A.I. was used to create an ad might pass legal muster, such requirements will do nothing to curb the lies.
That job is, as it always has been, up to the individual voter. That may chill some readers to the bone. But the Washington Supreme Court had it right: politics doesn't need a state-run censor.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
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