Wyoming “Synthetic Media” Bill Aims at Deep Fakes, Hits Free Speech

by Steve Klein

The proposed bills for the 2024 Budget Session of the Wyoming Legislature include what amounts to a laundry list of cultural grievances. I don't say it lightly, and often regret saying it, but some things are appropriate for legislation—sometimes, there really "aughta be a law," as the Schoolhouse Rock narrative goes. But usually there shouldn't be a law, certainly not one that makes a crime out of an emerging, nebulous problem, and legislators should be particularly wary of enacting laws that squarely violate constitutional rights.

Perhaps the best example of how to disrespect these principles in the 2024 Session is Senate File 51 – "unlawful dissemination of misleading synthetic media." A product of the legislature's Select Committee on Blockchain, Financial Technology and Digital Innovation Technology, the committee (whose meetings over the last year were live-streamed and are archived on YouTube) with the help of a working group (whose meetings aren't documented anywhere that I can locate) honed this multi-step monstrosity over the course of several meetings. The result is a word salad that only an attorney who has too much affinity for "the system" can appreciate. (I am not that attorney.)

As far as I can tell (I've only been a lawyer for 14 years, so bear with me), the bill would prohibit someone from knowingly and intentionally disseminating synthetic media without putting a disclaimer on it if it's published "[w]ith the intent to mislead others about the appearance, actions or speech of the natural person represented in the synthetic media." That last portion hints at what constitutes "synthetic media" in the first place, but the definition is truly a whopper:

"Synthetic media" means [1] an image, audio record or video record of a natural person's [1a] appearance, [1b] speech or [1c] conduct that [2] has been intentionally manipulated or generated in a manner to create a realistic but false [2a] image, [2b] audio or [2c] video or [2d] other representation that [3] to a reasonable person is of a real natural person in [3a] appearance, [3b] action or [3c] speech, which [4a] appearance, [4b] action or [4c] speech did not actually occur and [5] which would cause a reasonable person to believe the [5a] appearance, [5b] action or [5c] speech occurred.

I added the brackets with the numbers and letters myself to try and keep track of things. Taken together, this all amounts to prohibiting someone from sharing what's colloquially known as a "deepfake", but only ones that actually seem real. Presumably, Bill Hader as Arnold Schwarzenegger is safe. Violations would be punishable by up to six months of imprisonment and the bill also would permit "[a]ny person who is depicted by or who is misled" by the synthetic media to bring a lawsuit.

The First Amendment problems with this law are staggering. Groups like NetChoice and the Motion Picture Association—certainly not frequent players in Wyoming politics—tried to mitigate the damage, but to no avail. The supporters on the committee had little to go on other than platitudes like, from Senator Chris Rothfuss, "[n]o right is absolute when it starts to infringe on another's rights." Yet, the Supreme Court has made it abundantly clear that lies in and of themselves are protected speech under the First Amendment: just over a decade ago, the court struck down a law the prohibited some of the most terrible lies—those about military service. To make a lie a crime or basis for a lawsuit, it must inflict a quantifiable harm, like fraud. To let the government otherwise prohibit false speech poses far too great a risk that people will self-censor out of fear of being caught up in a prosecution or lawsuit. It's not as if the committee was not aware of this: the Media Coalition provided them a whole memo about it.

Whatever the law's proponents think of the First Amendment (very little, obviously), an incident this week shows the stupidity of the bill. During the Super Bowl halftime show on Sunday, the singer Alicia Keys flubbed some opening notes. Recordings of the live broadcast are available online, and one does not need to have a gifted musical ear to notice it. The NFL's publication of the halftime show fixed the flub:

(Link to Video on YouTube)

This is (following along with my earlier brackets) [1] an audio record of Keys's [1b] speech that [2] was intentionally manipulated to create a realistic but false [2b] audio representation that [3] a reasonable person would perceive as her [3c] speech that [4c] did not actually occur and that [5c] one would believe did actually occur. In other words, this publication by the NFL would be illegal under Senate File 51. And, if I didn't include the right disclaimer and had the wrong motives for sharing this video, I'd be committing a crime, too.

The cultural problem with stealth editing and digital manipulation like this is a worthwhile discussion. It's chilling and stupid that the NFL did this, essentially rewriting history, just like the recent revelation that streaming broadcasts of certain classic films are being reworked without notice. But it's not up to legislators, prosecutors and courts to solve this. To the contrary, it is a testament to the power of free speech and the free press as a remedy that issues like this are being exposed and illuminated publicly. As with other lies big and small—problems that certainly aren't new in America—we can work this out without threatening anyone with imprisonment.

Senate File 51 will likely be considered by the Senate Minerals committee in the coming week. It should die there.