Musk vs. Minnesota: Does deepfake election prohibition violate free speech?
Musk suing Minnesota over deepfakes law
Elon Musk and the social media site formerly known as Twitter are suing the state of Minnesota over its deepfake election law, saying it violates the First Amendment.
(FOX 9) - Elon Musk and the social media site formerly known as Twitter are suing the state of Minnesota over its deepfake election law.
Free or foe?
Constitutional question:
The law passed in 2023 with nearly unanimous support, but Musk says restricting deepfakes violates the First Amendment.
Legal experts say there’s a clear Constitutional question to be answered: The law could potentially chill protected speech, but judges may feel the need to put up new fences in a brave new world.
Defining deepfakes
AI manipulations:
Donald Trump and Kamala Harris didn’t really get arrested like you see in some election season deepfake videos.
And another AI-created video put words in Harris’ mouth.
"I am the ultimate diversity hire," the realistic-sounding deepfake presidential candidate said.
That video was widely shared, including by Elon Musk on his social media platform, X.
"Elon Musk has shown that he has no restraint when it comes to damaging our democracy," said Sen. Erin Maye Quade (DFL-Apple Valley), "And having the ability to create highly realistic videos and images to harm candidates he doesn't like, of course he's going to do that."
Minnesota's limits
How's it hurt?:
Sen. Maye Quade authored the Minnesota bill to criminalize deepfake dissemination under certain conditions.
It makes a deepfake illegal if it's sent out within 90 days of an election, a reasonable person wouldn't know that it was fake, and it was meant to injure a candidate.
But Musk is suing the state, saying the law violates the right to free speech.
His lawsuit includes another example of faked images of Trump being arrested as an example of a potential violation, but Maye Quade says it would still be legal.
"When I was reading through the lawsuit, every example they gave, I said, 'did they even read this law?'" Maye Quade said. "What wouldn't be allowed, for example, is if somebody made a deepfake of the candidate who's running in Mr. Eichhorn's former seat that shows them together and maybe doing something inappropriate."
Justin Eichorn is the senator who resigned this year after Bloomington police arrested him in an underage prostitution sting.
The legal question
Where's the line?:
Another court already ruled the Minnesota law allows for parody and satire, but said the First Amendment question still needs to be resolved.
Law professor David Schultz says courts don’t like giving the government too much discretion to judge the content of speech, but they haven’t been confronted with the ramifications of deepfake technology until very recently.
"The Supreme Court has never said that the First Amendment is absolute," Schultz said. "There are lines. The question is, where are those lines now in 2025?"
Schultz says another Maye Quade bill prohibiting technology that turns innocent photos into pornography probably has a stronger legal argument.
The Minnesota Attorney General’s Office tells FOX 9 its attorneys are reviewing the Musk lawsuit, and they’ll respond in court.