Volume 70, Issue 6, 1445-1490
We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the danger of “counterfeit campaign speech” is existential. Do current laws adequately regulate faked candidate speech? Can counter speech effectively neutralize it? Because it takes place in the vaulted realm of core political speech, would the First Amendment stymie any attempt to outlaw it? Many smart people who have looked at the general problem of deceit in campaigns have concluded that the state has no business policing it. But most examinations of lies in campaigns involve “real” mistruths told by or about a candidate or issue. As identified here, counterfeit campaign speech is different than a lie; the perpetrator has put false words in candidates’ mouths or made candidates appear to take physical actions they have not. It is a form of fraud. Scholars and courts that have examined campaign deceit acknowledge that a narrow prohibition could survive constitutional scrutiny. A ban on counterfeit campaign speech fits that bill. This Article explains how it is possible and why it is necessary.