Kohls v. Ellison

The Liberty Justice Center joined with the Southeastern Legal Foundation to file an amicus brief in Kohls v. Ellison, a First Amendment challenge to Minnesota’s new “anti-deepfake” law, asking the U.S. Court of Appeals for the Eighth Circuit to rehear the case en banc. The outcome will affect whether creators, commentators, and everyday citizens can engage in political parody and satire without risking government investigation or prosecution simply because their speech was generated or enhanced using new technology.

Minnesota’s new statute targets certain AI-generated “deepfakes” by prohibiting technological representations of speech or conduct that are “so realistic” a reasonable person would believe they depict a real individual who did not actually engage in that speech or conduct. The law is broad and threatens protected expression, particularly in the political arena where satire and sharp-edged commentary are common. As is the case with Christopher Kohls.

Mr. Kohls is a political content creator who challenged the law in connection with a parody video of Former Vice President Kamala Harris he created, arguing that the statute chills speech and invites selective enforcement.

A panel of the Eighth Circuit ruled that Mr. Kohls lacked standing, effectively concluding that his intended parody fell outside the law’s reach. But the Liberty Justice Center’s amicus brief explains that this approach misconstrues the statute’s text and leaves speakers in a precarious position: if the law can plausibly be read to cover their speech, the First Amendment permits them to seek pre-enforcement review rather than waiting to be prosecuted. The brief argues that courts should not narrow the statute at the standing stage by reading in an unwritten “parody exception” that the legislature did not include.

 “Citizens need to be able to challenge vague and overbroad laws that infringe on speech,” said Reilly Stephens, Senior Counsel and Director of Amicus Practice for the Liberty Justice Center. “It is not the place for courts to decide at the outset that prosecutors wouldn’t be crazy enough to go after parody as fact—and as we’ve learned over and over again, the process is the punishment.”

The Liberty Justice Center is asking the full Eighth Circuit to rehear the case to ensure that established First Amendment protections apply with full force to modern forms of communication. As new tools make it easier to create realistic audio and video, the constitutional principles protecting political speech, parody, and robust public debate remain the same. The court should allow this challenge to proceed so that Minnesotans—and Americans nationwide—do not have to self-censor to avoid the risk of punishment for protected expression.