Deepfakes Are Not Free Speech. They Are a National Security Threat.
On Tuesday, a federal judge in California made a mistake that will echo far beyond one courtroom.
Here’s what happened. Judge John Mendez struck down a California law that would have stopped online platforms from hosting deceptive, AI-generated deepfakes related to elections. The ruling focused on Section 230 of the Communications Decency Act, which protects platforms from liability for content posted by others. The judge said that sites like X don’t create the deepfakes, so they’re not responsible for them.
But here’s the problem. These platforms may not be making the deepfakes, but they’re the rocket fuel that spreads them.
For context, I’m sharing this from the perspective of a trial lawyer who works with evidence authenticity and foundation issues every single day. For several years I contributed as a consulting expert to the California State Bar’s “Effective Introduction of Evidence in California – Chapter 54: Electronic and Social Media Evidence.”
I’ve seen the real-world challenges up close. Deepfakes are not just a future threat, they’re a dangerous problem right now. Most people don’t even realize how often they’re exposed to them. And the truth is, it’s only going to get worse.
In my opinion, this particular ruling didn’t protect speech. It protected the infrastructure that allows dangerous lies to go viral, right when voters are trying to make the most important decisions in a democracy. And that should concern every one of us.
What Happens When No One Can Tell What’s Real Anymore
Deepfakes aren’t science fiction anymore. They’re not experimental. They are here. And they’re already being used to manipulate, deceive, and target Americans.
This is as bad as this technology will ever be. In the next 18 to 24 months, the line between real and fake won’t just blur. It will vanish. The average person won’t be able to tell the difference between a real video and one created by an algorithm. And the stakes aren’t just political. They’re personal. They affect how we trust, who we believe, and how we make decisions in every part of life.
Right now, you might think you can spot a deepfake. You might believe you’re too smart to fall for one. But soon, none of us will be able to know. Not without forensic tools. Not without expert analysis. And certainly not in the middle of a scrolling newsfeed.
That is when things will get dangerous. That is when bad actors will thrive. And that is exactly why we need laws that anticipate the threat before it explodes into a crisis.
The Kamala Harris Deepfake Was a Warning
This wasn’t an abstract debate. It started because a video circulated online of Vice President Kamala Harris calling herself the “ultimate diversity hire.” It was fake. It was designed to humiliate and mislead. It spread quickly, amplified by Elon Musk on his platform X, and was later used to mock Harris as unqualified and illegitimate.
The video didn’t need to be true to shape public opinion. It only needed to feel true to the people who wanted to believe it. That’s the new currency of manipulation. That’s the game plan now. Make something fake that confirms someone’s bias, and you’ve already won.
California’s law was an attempt to draw a line. It said that platforms with over a million users should not be allowed to host election-related deepfakes. It also proposed labeling requirements so voters would know when they’re looking at something synthetic. That’s not censorship. That’s guardrails. And every voter in America should want them.
We Cannot Wait Until This Gets Worse
We do not need another January 6. We do not need a fake video triggering violence. We do not need a synthetic smear destroying a candidate’s reputation days before an election. We do not need a lie wrapped in code spreading faster than the truth ever could.
Judge Mendez said the law conflicts with Section 230. He said platforms don’t control what users post. He also said he plans to strike down a second law that requires labels on manipulated political content, calling it a censorship issue.
What’s missing from this ruling is a sense of urgency about what we’re facing. Deepfakes are not opinions. They are simulations meant to deceive. And when they’re used during elections, they don’t just confuse voters. They poison democracy.
California was trying to act before the damage becomes irreversible. Governor Newsom was right to push back after the Harris video. Other elected representatives were right to put these protections on the books. We need more of that, not less.
The Threat Is Bigger Than One Case or One State
This is more than just about California. It’s about every American voter.
If the courts strip away the ability to regulate deepfakes during elections, they are opening the door to a future where truth has no weight. A future where fake scandals dominate headlines. A future where candidates are destroyed by lies they never said. A future where voters are choosing between illusions, not policies.
This is not theoretical. The tools are already out there. Bad actors already have them. And the next election will not be a dry run.
We don’t need to wait for something horrific to happen. We don’t need a disaster to justify regulation. We already have the warning signs. We already know what’s coming. The only question is whether we act now or explain later why we didn’t.
We Need to Act Before the Damage Is Done
There’s a reason we put locks on doors before the break-in. There’s a reason we build bridges to hold weight before we drive across them. We take steps to prevent the worst, not react after it’s too late.
The same principle applies here. We need real rules for synthetic content. We need digital labeling. We need consequences for distributing deepfakes during elections. We need legal tools that protect voters from deception and protect democracy from collapse.
This is not about silencing anyone. It’s about protecting everyone. You have a right to free speech. You don’t have a right to manipulate the public with fabricated videos designed to look and sound real.
That’s not speech. That’s fraud.
And if we don’t stop it now, we will lose more than an election. We will lose the truth itself.
Mitch Jackson, Esq. | links |
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