What’s past is prologue: How California’s AB 1836 threatens creative freedom

A peculiarity of politics is that legislation often lags behind technological advances. Such is the case with a proposed California law, Assembly Bill 1836, introduced by Asm. Rebecca Bauer-Kahan, D-San Ramon, awkwardly jabbing at unsettled questions around artificial intelligence’s replicative power.

The bill aims to control digital cloning techniques that can realistically simulate a person’s voice and likeness – responding to understandable outrage over high profile abuses of this technology such as the AI generated “Fake Drake” and The Weeknd song “Heart on My Sleeve,” Taylor Swift pornographic deepfakes, or fake Joe Biden robocalls. But this emerging technology also holds incredible promise for spurring creativity and commentary. It can help resurrect historical figures to illustrate modern lessons or provoke new thought through satire.

Safeguards are appropriate to prevent genuine harms that could result from deception or fraud. But AB 1836 goes far beyond such narrow protections. It grants deceased celebrities an inheritable right to control nearly any expressive audio or visual work depicting them through AI simulation. The overbroad nature of AB 1836 reflects lawmakers grabbing at policy solutions before fully understanding emerging technologies. In its undisciplined scope, the bill is less scalpel than sledgehammer — clumsily attacking broad swathes of constitutionally protected speech and artistic expression.

More fundamentally, the bill reveals skepticism about the public’s ability to determine what is appropriate, through social norms and market accountability. And broadly empowering private censorship, through the creation of new inheritable rights, sets a dangerous precedent for expressive liberties.

The bill applies stronger controls for the use of simulated depictions of deceased celebrities than living figures could assert over their own images. This gets incentives backward, commodifying the past to benefit heirs more interested in licensing profits than protecting legacy.

Even more alarming is the absence in the bill of well-established protections for parody, documentary, or other kinds of speech protected by the First Amendment. Without these important protections for creative freedom, vast swaths of expressive speech will effectively be prohibited – from biopic performances to caricatures used for social commentary – until someone with the means to do so mounts a constitutional challenge to the law. In the meantime, many creators who would be facing the threat of tens of thousands in statutory fines would simply self-censor. Important works of historical fiction, parody, political commentary, and more would be stillborn rather than risk an expensive lawsuit.

Defending free speech often means defending uncomfortable expression. Satirists from Jonathan Swift to Stephen Colbert have used hyperbolic mockery to address very real controversies and highlight flaws in public figures’ judgment. If Colbert needs the permission of a former president’s estate to craft a blistering impersonation enhanced by technology, his commentary loses its teeth.

Likewise, AB 1836 could cast a pall over documentary filmmaking and journalism. If the technology exists to resurrect a historically significant figure like Martin Luther King, Jr. or Ronald Reagan to recreate important events or illustrate contrasts with contemporary politics, the public interest should supersede any control by heirs over the portrayal.

Of course, reasonable limits on outright fraud are warranted as this technology develops. Several states have passed narrowly tailored laws prohibiting non-consensual intimate images or election disinformation. But by covering broad swaths of protected speech, AB 1836 risks throwing out the baby with the bathwater.

There are less restrictive ways to balance free speech, personal rights, and artistic freedom as technologies evolve. Clear statutory exceptions for expressive works can protect satire or historical dramas that contribute to public discourse. Defining an unlawful use as something that was intended to deceive, rather than applying to any depiction of a real person, allows for creative breathing room. And aligning digital replica protections with laws that apply to the living focuses regulation on the speech most likely to cause real harm.

AB 1836 proponents act from genuine concern about potential misuse of rapidly improving technology. But their sweeping approach poses an even greater threat to democratic principles. As lawmakers, courts, and the public debate this issue, we must take care not to undermine the very liberties that enable social progress.

Reasonable minds may differ on where lines should be drawn. Yet free expression must remain the rule, not the exception, for creativity to thrive. If we believe satire, cultural critique, and even learning from the past have value, then lawmakers must craft digital replica policies that nurture those ends.

Mike Montgomery is the executive director of CALinnovates