Sex, Lies, and Videotape: Deep Fakes and Free Speech Delusions

Mary Anne Franks and Ari Ezra Waldman

The longstanding position of civil libertarians that harmful speech should generally be tolerated instead of regulated is based on three interrelated claims about free speech. One is that an unfettered “marketplace of ideas” ultimately leads to the discovery of truth. The second, closely related to the first, is that harmful speech is always best addressed through counterspeech rather than regulation. The third is that even well-intentioned and modest regulations of speech will ultimately be used to silence minority or dissident voices. Whatever merit these claims may have had in the past, they cannot be sustained in the digital age. Unbridled, unlimited free speech rights, especially in an era of technologically mediated expression, have led to the disintegration of truth, the reign of unanswerable speech, and the silencing and self-censorship of women, queer people, persons of color, and other racial and ethnic minorities.

These three delusions of traditional free speech discourse are thrown into sharp relief by the phenomenon of “deep fakes.” Deep fakes, a portmanteau of “deep-learning” and “fake,” are audio or visual material digitally manipulated to make it appear that a person is saying or doing something that they have not really said or done. First, deep fakes erode the capacity of the public to discern truth from falsity. Second, they inflict dignitary harm that cannot be challenged or corrected by responsive expression. Third, it is the failure to regulate deep-fake pornography—not the efforts to do so—that most seriously undermines the free speech rights of vulnerable groups. To do nothing about harmful speech in the digital age is far from liberal nonintervention; rather, it is a normative choice that perpetuates the power of en- trenched majorities against vulnerable minorities.