From Kohls v. Ellison, decided today by Eighth Circuit Chief Judge Steven Colloton, joined by Judges James Loken and Duane Benton:
In May 2023, the Minnesota legislature enacted a law regulating deep fakes. The relevant text reads as follows:
A person who disseminates a deep fake or enters into a contract or other agreement to disseminate a deep fake is guilty … if the person knows or reasonably should know that the item being disseminated is a deep fake and dissemination:
(1) takes place within 90 days before an election;
(2) is made without the consent of the depicted individual; and
(3) is made with the intent to injure a candidate or influence the result of an election….
A deep fake is defined as "any video recording, motion-picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct … that is so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct." … [A later] amendment expanded the scope of the prohibition to include the periods "within 90 days before a political party nominating convention" or "after the start of the absentee voting period." As amended, the statute further provides that a state or local candidate who violates the law must forfeit any nomination or elected office, and is disqualified from any future appointment to office.
