Senator Jessica Castleberry (R-35/Rapid City) has two bills seeking to prevent attacking individuals with faked media. Both seem to be reasonable ideas with a reasonable commitment to truth and decency, but both contain some problematic language.
Senate Bill 120 seeks to ban making fake naked pictures or videos of any person without the person’s consent. (Scott’s picture of Kristi Noem on a horse is still o.k., since it doesn’t show any parts of Kristi or horse.) But while seeking to prevent fake porn, the swooningly virtuous Senator Castleberry seems to narrow the kinds of real naughty pictures for which a pornographer may be punished. SB 120 changes the existing statute against unconsenting naked image-taking from forbidding unauthorized depictions with another person in a “sexual manner” to unauthorized depictions with another person in a “sexual act.” SB 120 thus appears to say that I can craft and publish a fake picture of Corey Lewandowski ogling Kristi Noem lasciviously and offering his sexual delights to her, as long as I don’t show either of them naked (perish the thought) or exposing or touching any statutorily defined naughty parts. “Sexual manner” to “sexual act”—are you sure you want to water down that part of the statute, Senator Castleberry?
Senate Bill 121 is a more complicated and problematic ban on fake media. Senator Castleberry seeks to carve out special protection from fake pictures, audio, and video for political candidates. SB 121 would punish anyone who makes any kind of “materially deceptive media” about a candidate’s appearance, speech, or conduct within 90 days of an election without affixing a clear statement that the media is fake.
SB 121 expressly excludes satire and parody from penalty. But SB 121 runs counter to established law on defamation, which says citizens may make harsher comments about public figures than they can about regular private citizens and escape penalty from the courts. It also creates a fuzzy standard of leading a “reasonable person to believe the image or recording is of the authentic candidate.” How do we determine the different between an obvious fake and a better-executed fake? What’s the difference between my cartoonish image of the Governor and Lieutenant Governor in prison stripes and a more realistic image of them in some unpleasant setting? And who’s to say that a realistic fake is any less insulting or damaging to reputation than an obvious and degrading caricature?
SB 121 also lets TV, radio, and cable companies off the hook for disseminating faked media if they are paid to do so, which seems to defeat the purpose of restricting this false speech. If a rich candidate can buy airtime for well-executed fake media and cost her opponent votes, why would she care if SBf 121 allows the harmed opponent to sue for civil damages afterward? Run the ad, win the election, and let the opponent cry about it later. A ban on faked media might have more teeth if the media companies with the power to spread them faced the loss of their profits to pressure their action as gatekeepers against such false attacks.
SB 120 raises a small question about the scope of fake revenge porn that unseemly media makers may post. SB 121 raises much larger and problematic questions about what special protection, if any, public figures should get from faked media.