DEEPFAKES AND OTHER NON-TESTIMONIAL FALSEHOODS: WHEN IS BELIEF MANIPULATION (NOT) FIRST AMENDMENT SPEECH?

• Author: Blitz, Marc Jonathan

Introduction I. Three Analogies: Deepfakes as Fabricated Realities, Creative Fictions, and False Testimony A. Deepfakes as Fabricated Realities B. Deepfakes as Creative Fictions C. Deepfakes as False Testimony II. United States v. Alvarez--and Deepfakes as Visual Lies A. Reconciling Deepfake Dangers and Benefits B. Alvarez, Lies, and Deepfakes C. An Alternative to Alvarez: Treating Verbal Lies as Unprotected III. Deepfakes as Non-Testimonial Falsehoods A. Testimonial and Non-Testimonial Sources of Knowledge (and False Belief) B. Speaker Autonomy C. Viewers' Autonomy and Reliance Interests (and "Epistemic Backstops") IV. The Constitutional Challenges of Transformative Technologies A. Deepfakes and Shifting Constitutional Boundary Lines B. Equilibrium Adjustment Theory, the Fourth Amendment and the First Amendment V. Deepfake Deception, Public Discourse, and Artistic Expression A. Deepfake Deceptions and Public Discourse B. Deepfake Deceptions and Artistic Expression C. Safe Zones, Authentication, and Shelters from Deepfake Deceptions D. First Amendment Space for Regulating Forgeries and Fabrications VI. Deepfakes, Disclosure, and Doctrines for First Amendment Middle Grounds A. Borderline Cases and First Amendment "Middle Grounds" B. Disclosure Requirements C. Viewpoint Neutrality and Intermediate Scrutiny Conclusion INTRODUCTION

"I tell you there's something phony going on. There's something phony ... about this whole Medal of Honor business."

~ Captain Bennett Marco in The Manchurian Candidate (1962)

Individuals are presumptively protected by the First Amendment when they deceive other people by making false statements. The Supreme Court made this clear in the 2012 case of United States v. Alvarez. The criminal defendant at the center of the case, Xavier Alvarez, had falsely insisted that he had won a Congressional Medal of Honor for his bravery in battle. In reality, he had never served in the military. (1) He was prosecuted for his false claim under Congress's Stolen Valor Act, which made it a federal crime for a person to "falsely represen[t] himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States." (2) But the Court found this law unconstitutional. Lies such as that of Xavier Alvarez, Justice Kennedy said in the plurality opinion, are shielded by the First Amendment's free speech protection unless the government can show that that they are not merely false, but also harmful in ways that have traditionally provided the basis for liability. (3)

But imagine that a person wishing to do what Xavier Alvarez did--give others the false impression he had won a Medal of Honor--did so not by using false statements, but rather by creating fake evidence. Imagine he didn't want others to have to take his own word that he was a Congressional Medal of Honor winner--that he instead wanted them to be able to reach this conclusion by observing the world around them, and using evidence that they could see and examine for themselves. He might have done so, for example, by wearing a fake Medal of Honor around his neck, or perhaps a real medal that had made its way through an Internet auction or two into Alvarez's possession.

Or he might have created a web site presenting itself an authoritative "register of military award winners" and added his name to an otherwise accurate list of award winners. Perhaps this web site could have posed as the creation of the Department of Defense or another government agency, or as that of a private organization which has the purpose of celebrating military accomplishments.

Or imagine that he took this deception a step further. Imagine that he wanted his audience to see, with their own eyes, not only the Medal he had purportedly earned, but a video of the ceremony in which President Reagan presented it to him. In past years, generating such a visual illusion would be difficult: Alvarez never actually received a Medal of Honor from President Reagan, and it has generally been quite difficult to produce a video of an event that never occurred. A major movie studio, perhaps, could do so: The 1994 film, Forrest Gump, used special effects to show President Lyndon B. Johnson awarding a Congressional Medal of Honor to its fictional title character (played by Tom Hanks). (4)

But that kind of fabrication has required immense time, effort, artistry, and expense. Technological development, however, is making the generation of fake videos far simpler. With a kind of machine learning known as "deep learning," a computer program can quickly teach itself to recreate a person's image or voice, manipulate it--like a puppeteer controlling a puppet--and blend it seamlessly into an environment the person never inhabited. (5) This kind of fake video or audio, a "deepfake," can be very difficult to distinguish from genuine camera footage. (6) As a consequence, the seemingly real political speech we see by a U.S. President or other world leader might be one that never occurred. Deepfake creators, in fact, have generated speeches of this kind to demonstrate the power of this technology including a video showing President Obama warning--in a speech he never gave--about the dangers of deepfakes, (7) another showing President Nixon announcing the failure of the 1969 Apollo mission to the moon and the death of the astronauts on that mission (8) and a fake Christmas speech by Queen Elizabeth II to mark the end of 2020. (9) In this form, video and audio recordings or transmissions are no longer a window into remote events. They are instead a portal through which we see a hyper-realistic world that is fabricated and fictional.

With this technology in hand, Alvarez could have produced video evidence for his tall tale. He could have created a video showing brief clips of President Ronald Reagan awarding various medals, including Medals of Honor--with one clip showing Reagan placing one such Medal of Honor around Alvarez's neck after vividly describing Alvarez's selflessness and bravery in battle. If he wanted to make this more convincing, he might insert this video clip into a series of other genuine videos showing Reagan presenting military and civilian awards. Someone who recognized any of the other award winners as individuals who have won those awards, might then mistakenly assume this means that all of the clips in the video are authentic (just as someone who saw Alvarez's name added to an otherwise accurate list of Medal of Honor Winners on a web-based database might assume that this means Alvarez's name belongs there too).

In all of the above cases, he would deepen his deception. He could now back up his lie by telling his audience, "if you don't believe my statement, here is additional evidence to support it that you can examine for yourself. You can see the medal I received, examine an authoritative web site supports my claim, and that there is a video showing me receiving the Medal of Honor."

When individuals deepen deception in this way, moving from fake words to the creation of fake evidence, does First Amendment protection move with them? Does the First Amendment protect them not only when they insert falsity into their own words, as the Supreme Court held in Alvarez, but also when they find ways to introduce it into fabricated evidence such as a deepfake video? Where someone not only tells a verbal lie, but also--or instead--falsifies the kind of external evidence others would use to check the veracity of that lie, such as a web site apparently created by an independent source or a videorecording, does the First Amendment also protect this additional deception?

There has been relatively little analysis of this question in First Amendment case law or scholarship. But scholars and commentators have recently begun to offer initial answers to it as they have struggled in the past three years with the threats raised by deepfakes. They often assume that if, as the Supreme Court has held, the First Amendment protects verbal lies it should also protect visual lies that one finds in deepfakes. (10) Particularly in this era, when people communicate on social media not just by posting comments, but also by sharing video clips, video is a form of expression. So if the holding of Alvarez is that a speaker presumptively has a right to insert falsehood into her own expression, then it follows she has a right to do so when she expresses herself with a vivid image sequence rather than with comments. To use language used by courts in First Amendment cases, sharing videos is--at least in the early twenty-first century--an "inherently expressive" social practice. (11)

Indeed, a video like the hypothetical one described above, depicting Alvarez receiving a Medal of Honor, is not only arguably the equivalent of Alvarez's protected false statement. It might also be an instance of another kind of unquestionably protected speech: artistic expression. The makers of the movie, Forrest Gump, clearly had a First Amendment right to create a vividly realistic scene of their protagonist in a fictional Medal of Honor ceremony. The government could not constitutionally have ordered them to remove that scene from the film. Why then shouldn't modern-day video-makers be able to exercise the same creativity on YouTube or other social media sites? Why shouldn't they be able to give vivid visual form to their own autobiographical fictions, whether this involves weaving themselves into a Medal of Honor ceremony, making themselves a hero of a World Series game, or placing themselves on a concert stage to accompany Nat King Cole, the Beatles, or perhaps Johann Sebastian Bach, John Dowland, or Hildegard of Bingen?

To be sure, as numerous commentators have pointed out, some deepfakes might be far less whimsical and potentially quite dangerous. Bobby Chesney and Daniel Citron, for example, consider the ways deepfakes might be used to defame or...