Bill Description: House Bill 426 would allow a candidate for office whose appearance, action, or speech is altered through the use of synthetic media in an electioneering communication to seek injunctive relief as well as general and/or special damages.
NOTE: House Bill 426 is similar to House Bill 407, introduced earlier this session. Compared to its predecessor, House Bill 426 simplifies the text-size requirements for disclosures on visual media. It also moves up the bill's effective date from July 1, 2024, to immediately upon its passage and approval. The changes made by House Bill 426 do not address the problems noted in the analysis of House Bill 407, and House Bill 426 receives the same rating for the same reasons.
Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?
House Bill 426 would create the Section 67-6628A, Idaho Code, which would be titled the "Freedom From AI-Rigged (FAIR) Elections Act."
The bill would define "Synthetic media" as "an image, an audio recording, or a video recording of an individual's appearance, speech, or conduct that has been intentionally manipulated with the use of generative adversarial network techniques or other digital technology in a manner to create a realistic but false image, audio, or video that produces: A depiction that to a reasonable individual is of a real individual in appearance, action, or speech that did not actually occur in reality; and A fundamentally different understanding or impression of the appearance, action, or speech than a reasonable person would have from the unaltered, original version of the image, audio recording, or video recording."
The bill would allow any candidate "whose appearance, action, or speech is altered through the use of synthetic media in an electioneering communication" to "seek injunctive or other equitable relief prohibiting the publication of such synthetic media" and to "bring an action for general damages, special damages, or both against the sponsor."
This is effectively a prohibition against certain types of free speech, including political speech and artistic expression that may include something as simple as a meme featuring a politician's photo and a humorous (but inaccurate) quote.
It's "an image … manipulated with … digital technology" that a "reasonable individual" might believe represents a real quote.
Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion, or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?
In addition to being overbroad and burdening free speech, House Bill 426 would create a double standard. A political candidate could seek injunctive relief as well as general and/or special damages for the publication of certain content, but no other person would be granted a similar remedy.
To the extent that certain manipulated content may meet the legal definition of fraud, harassment, libel, or some other crime, the law should provide the same remedies to all potential victims, not carve out special protections for a favored class such as political candidates.
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