Geoffrey R. Stone on Faked Videos and the First Amendment

Face-Swapping Porn: How a Creepy Internet Trend Could Threaten Democracy

Despite the progress many states have made in recent years passing laws aimed at nonconsensual "revenge porn," there isn't a whole lot deepfake victims can do to protect themselves. "The basis for nonconsensual porn laws is that it's private, true information being disclosed without your consent, and you can regulate that. But if it's created – false information – it's no longer considered a privacy violation," says Franks. In other words, despite the fact that your face stitched onto a body of a random porn star doing something explicit is horrific, it's not exactly "true." And that's hard to fight.

For starters, there's the issue of the First Amendment – most deepfake 'creations' are protected under the freedom of expression, which allows us to construct vulgar satires and parodies with impunity. As long as a deepfake video doesn't claim to be real (and with "deepfake" in the title of many of these videos, we know they're not), it's simply salacious entertainment, which has a long history of protection under the law, says University of Chicago first amendment scholar Geoffrey R. Stone.

One of the most famous such cases dates back to 1983, when Hustler magazine published a satirical ad suggesting televangelist Jerry Falwell had drunken sex with his mom in an outhouse. Falwell sued for libel and emotional distress, and the Supreme Court shot him down on the basis of the First Amendment. So what will happen when these AI-enabled pornos start passing, and claiming, to be the real thing? "Historically the court's been very cautious about limiting what would otherwise be free speech because of technological change," says Stone. We'll have to wait.

Read more at Rolling Stone