Kohls v. Ellison is an ongoing case in the U.S. District Court, District of Minnesota concerning the state’s anti-digital manipulation law (Minn. Stat. 609.771), which prohibits the use of so-called deepfakes in political campaigning. Deep fakes are digitally manipulated videos, pictures, or audio that generally make people appear to be doing something that never happened.
Two individuals, private citizen Christopher Kohls and State Representative Mary Franson (Republican), who shared on social media digitally manipulated videos featuring the Democrats’ presidential and vice presidential candidates, sued the state’s Attorney General to stop enforcement of the statute. One motion they filed in the litigation dealt with the admissibility of expert testimony. In a separate motion, plaintiffs sought to preliminarily enjoin the statute’s enforcement because they alleged it violated the First Amendment.
In the first motion, the plaintiffs sought to exclude the testimony of expert witnesses Jeff Hancock and Jevin West. Hancock is a professor at Stanford University who specializes in artificial intelligence and the effect of deep fakes on democracy. (That will be important later.)
Plaintiffs described West’s declaration as improperly full of conclusions about the law, which can only be made by judges. The judge disagreed, finding that it was too early to conduct a full analysis of whether West had used a method that was generally accepted within the relevant scientific community (the Daubert standard). Also, the court found West’s testimony educational and that West had merely noted how his analysis fit within the legal questions of this case, rather than improperly making legal conclusions.
Hancock’s testimony, on the other hand, came into question because he used artificial intelligence improperly to draft his expert witness declaration about artificial intelligence. As the court said, “The irony.” Hancock used GPT-4, a large language model, to find citations for the written testimony he had drafted on his own. However, as has been noted in other cases, the software “hallucinated” two citations that did not exist and got the name of the author wrong on another. For this reason, plaintiffs argued, Professor Hancock’s testimony should be excluded in its entirety.
The court agreed and issued an order excluding Hancock’s testimony, and denying the state’s request for leave to file an amended declaration as moot. While acknowledging that the expert witness and the prosecution promptly and graciously apologized, the court politely skewered Hancock’s credibility. The judge emphasized twice that the testimony was submitted under penalty of perjury, and said it was inappropriate for Hancock to have higher standards for academic papers — for which he normally ran an app to check for hallucinated references — than for his court testimony.
The second motion, for a preliminary injunction barring the enforcement of Minn. Stat. 609.771, claimed that the statute was unconstitutional and warranted being enjoined. The court spent a lot of time going over the timeline and found that Representative Franson took 14 months to file for a preliminary injunction — something that undermined her claim of imminent, irreversible harm. Furthermore, the self-styled memes — showing Kamala Harris saying absurdly self-deprecating things and Tim Walz literally waving his arms off his elbows — were not believable. Since Minn. Stat. 609.771 requires a reasonable person to believe that the video showed someone doing or saying something that they had not actually done or said, plaintiffs were not likely to be prosecuted and unlikely to win on the merits.
Indeed, because Kohl had a disclaimer on his videos that “this is a PARODY!”, he didn’t even have standing to bring the lawsuit and his claim was dismissed. The only surviving claims were by Rep. Franson, who might, after losing this preliminary injunction motion, demonstrate that her re-posting of Kohl’s videos without the disclaimers could be prosecuted under the Minnesota statute. It was unlikely, given the absurdity of the videos and their likelihood of being believed by any reasonable person, but sufficient to defeat the State’s motion to dismiss.
Would-be political influencers can take comfort in the loopholes that would allow them to skirt this statute, like adding a simple disclaimer in the text description. Others might fear that it does not prevent a foolish consumer of social media from believing and repeating whatever they saw and heard on Instagram. (Frankly, with all the real news being so outlandish, reporting on fake news seems to be the least of our problems.)
