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Castleberry Trying to Ban Fake Nudie Pix and Manipulated Images and Recordings of Politicians

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?

Larry Rhoden and Kristi Noem in prison stripes.
“This image has been manipulated. It’s not really Larry and Kristi in prison garb.” There, does that keep me out of a lawsuit, Jessica?

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.


  1. mike from iowa 2022-02-03 08:50

    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.

    Does this ban Fox News from South Duhkota since they are fake news but will not admit it unless they are being sued?.

  2. sx123 2022-02-03 09:39

    What if one takes pictures (using a camera) of hand drawn caricatures of faces and bodies and use Photoshop to combine and manipulate photos of hand drawn caricatures of candidates into bitmaps of caricature faces and bodies in compromising positions? Is that ok? Do I need to still say this is fake?

    More petty laws that don’t do anything important.

  3. Richard Schriever 2022-02-03 12:45

    So Trump could be sued/charged with a crime for all his fake nonsense about various election officials AND
    political candidates. Does the fakeness standard also apply to exaggeration of persons’ positive qualities???? (The best people?)

  4. Donald Pay 2022-02-03 13:33

    I doubt this bill would stand 1st Amendment scrutiny. One of the things I learned in an Art History course on postmodernism is that manipulation of an image is used not only to make you see something new and different in a photograph, but more broadly and deeply, to make people think about whether one should trust any image. What I like about postmodernism is that it says you often can’t and shouldn’t trust the image.

    I think of Noem’s piece of work on her on face, which I have dubbed “Porn Lips.” She’s obviously used manipulated parts of her face in order to project an image different from the one of her natural face. If you think about it, that’s true of most women. They wear makeup as a way to manipulate an image, which, if she captured on a photograph, might run afoul of this law. Certainly retouched photos could be considered manipulated.

  5. Porter Lansing 2022-02-03 14:46

    Kristi Noem’s campaign paying Billie Sutton’s neighbor to tell lies about Billie, three weeks before the election?

  6. mike from iowa 2022-02-03 14:56

    Magats shot down Noem’s 6 week abortion ban/fetal heartbeat monstrosity because of some of her langwidge. Power struggle between guv and lege I doubt guv can win. She is never to be found at home taking care of state business.

  7. jkl 2022-02-03 16:34

    Your caption which states: “…not really Larry and Kristi…” left me asking, Larry who? Your reference later on of the Lieutenant Governor made me remember. Oh yeah that guy. Has there been a more NOseeEM Lt. Gov. then this guy?

  8. grudznick 2022-02-03 18:08

    Now now. Ms. Castleberry is very young and naïve in these matters. I am sure she worries about peeps in the bushes and such, and she is very pretty so that is understandable. She is not part of those who are the insaner ones in the Districts numbered in the Thirties, so let us cut her a break. I am sure this law bill will eventually be bonked on the head.

  9. larry kurtz 2022-02-03 18:11

    No doubt Castleberry herself has been the butt of deep fakes especially with those curls she coiffs. Our buddy, PP has objectified her and has shared plenty of Noem skin at his pissoir.

    Sexual predators in Pierre have been a feature of South Dakota for its entire history but to Sioux Falls-area legislator, Deb Peters it’s no big deal.

  10. Mark Anderson 2022-02-03 18:15

    Jezz, as soon as I’m done reworking my house, a pandemic decision. I was going to make oral sex visions of all, my favorite Republicans cast in glass. I figured it wouldn’t take much material. Would that be affected?

  11. grudznick 2022-02-03 18:43

    Mr. Anderson, you should start with that young woman Lar points out. She’d be a dandy.

  12. jerry 2022-02-03 19:56

    Wonder why right wing republicans are so fearful of nude anything. NOem just signed the transgender ban so now if you get beaten in competitive sports, you can challenge the opponent to I’ll show you mine if you show me yours.

  13. All Mammal 2022-02-03 22:08

    Aging with grace is beautiful. If you look like you might start drooling when you speak or your lips and cheeks become so turgid they look like they might split open like a pack of boiled ball park franks, you’re as fake as my false lashes. Oh.

  14. Cory Allen Heidelberger Post author | 2022-02-04 06:46

    Porter raises a good point; SB 121 would not touch the kind of character assassination Noem engages in. When she dug up Gregory County locals to slag Billie, she wasn’t manipulating Sutton’s appearance, speech, or conduct… although now you get me wondering: could we say that Senator Castleberry could be creating a legal minefield for those ads that put glowing photos and glorious slo-mo videos of the favored candidate on horseback alongside darkened, scowling images of the opponent cast in grainy black and white and played under foreboding music of doom? Both practices manipulate appearances. Both seek to create “a fundamentally different understanding or impression” of the candidates than viewers might take from seeing the original, unedited photo or video?

    As usual, when conservatives try writing speech bans, they end up in a world of confusion.

  15. DaveFN 2022-02-04 12:29

    Casselberry is clearly hung up on the image, and, as Donald Pay correctly points out, those cognizant of cultural theory know that the image has always had the power to captivate and thus deceive (and this extends to body language which no less can lie, popular and laughable notions claiming that one can somehow “read” it as the truth notwithstanding). I

    Casselberry would better emphasize truth in word and deed as desired criteria for politicians and political discourse, high calling though that might be for her and other politicians.

  16. DaveFN 2022-02-04 12:39

    …”Casselberry” itself being a deceptive misspelling at the level of the image for all its phonetic accuracy.

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