On Monday, Daily Wire Editor-at-Large Josh Hammer, who is also a constitutional attorney by training, joined “Tipping Point With Liz Wheeler” on One America News Network to discuss California’s recent passing of a law banning so-called “deep fake” videos when those videos are aired close to an election. As explained by The Verge, California’s law “makes it a crime to distribute [within 60 days of an election] audio or video that gives a false, damaging impression of a politician’s words or actions.” However, as The Verge continues to explain, “[p]otentially deceptive video or audio will also be allowed if it includes a disclaimer noting that it’s fake.”
The issue, as it appeared to Wheeler and Hammer, is the danger of politicians delegating power to judges to ban forms of audio or video that they, using their discretion, determine to be deceptive. Wheeler and Hammer both discussed the example of David Daleiden and the Center for Medical Progress, whose videos exposing systemic corruption at Planned Parenthood were decried for years by the Left as “deceptively edited” before the U.S. Court of Appeals for the Fifth Circuit stated, in a footnote earlier this year, that the videos were not deceptively edited. As Hammer reported at the time for The Daily Wire, the Fifth Circuit opinion’s sixth footnote reads:
In fact, the record reflects that [the Texas Health and Human Services Commission’s Office of Inspector General] had submitted a report from a forensic firm concluding that the video was authentic and not deceptively edited. And the plaintiffs did not identify any particular omission or addition in the video footage. Moreover, the district court also suggested that there was no evidence that any of [Planned Parenthood’s] research was federally funded, so the regulations relied on by OIG might be inapplicable. But the record actually establishes that the UTMB study was funded by the National Institute of Health.
With that context in mind, Wheeler began by asking Hammer whether California’s law could even withstand a First Amendment challenge. Hammer said that the issue is “probably right on the line” of unconstitutionality, and proceeded to explain why the law’s delegation of discretionary power to judges is problematic:
You know, it’s probably right on the line. I mean this is in California, so this would ultimately get appealed to the California Supreme Court and … if it’s a First Amendment challenge, [would] actually go to the Ninth Circuit because we need a federal court [for that]. These are liberal courts; traditionally, over the past 15-20 years, the Left has increasingly sided against free speech. So I could see the courts there upholding it.
But you know, here’s the thing, Liz. Anthony Kennedy — someone who I am NOT a fan of, I would be mortified to share on national television some of the things I’ve said in my private life about Anthony Kennedy — but if there’s one thing that Anthony Kennedy was wonderful on throughout his entire career, it was free speech. And he really said it best in the landmark case of Citizens United v. FEC in 2010. Kennedy said, quote: “It is our law and our tradition that more speech, not less, is the governing rule.” And that’s kind of the classic American axiom — that is how we have always comported ourselves in the public square and the realm of politics. … The way the combat speech is with more speech. It is not to attempt to write vaguely worded statutes that … take power away from the elected political branch and ultimately are just empowering federal judges to interpret these broadly worded statutes. That’s what this is doing — it’s empowering judges to decry it as right and wrong. It’s an anti-democratic movement it is a totalitarian power grab and really, people of all political stripes should not stand for this.