Judge overturns Hawaii's criminalization of 'deceptive' election memes as broad, vague and biased

California's ban on "materially deceptive" political content didn't last even a month after it was challenged during the 2024 election season, with one federal judge blocking the law as likely unconstitutional and Attorney General Rob Bonta promising another not to enforce it.

Its distant Pacific neighbor Hawaii's similar ban, also challenged by Christian satirists, lasted for seven months of litigation but went down even more spectacularly, with a federal judge this month striking down Hawaii's Act 191 as facially unconstitutional without a trial.

U.S. District Judge Shanlyn Park, nominated by President Joe Biden and reportedly the first Native Hawaiian woman confirmed to the role, issued summary judgment Friday to The Babylon Bee and Dawn O'Brien, a Honolulan who uses memes to mock Democratic Gov. Josh Green. 

The ruling spells the end of the law signed by Green in summer 2024, which Park permanently enjoined before it could be enforced against anyone. 

By contrast, fellow Biden-nominated Judge Laura Provinzino rejected a motion for judgment on the pleadings by Elon Musk's X against Minnesota's similar law two months ago, finding X did not face a credible threat of enforcement, so it lacks legal standing to bring a Section 230 federal preemption challenge. The case hasn't moved since.

Hawaii's statute targeted "materially deceptive" video, images and audio in any "advertisement" that depicts a person "engaging in speech or conduct" that never happened but would "cause a reasonable viewer or listener" to believe it happened. The law also required showing distribution could risk "harming the reputation or electoral prospects of a candidate" or changing voting behavior.

Limited to election season during even-year elections, Act 191 was set to "resume effect" on Monday through the midterms. It was intended to stop "political deepfake and generative AI content" without excluding satire and parody, while fully exempting pass-through TV providers, Park said.

Satirists like the Bee and O'Brien could escape liability through a so-called safe harbor: joke-killing disclaimers in text as large as the largest text on the content, or read before and after audio-only content. If they did not, they could be prosecuted, jailed and fined.

Bee CEO Seth Dillon thanked its lawyers at the Alliance Defending Freedom for helping it "challenge laws that treat comedy like a crime.” ADF Legal Counsel Mathew Hoffmann said the Aloha State trampled a speech category that merits "the utmost protection," humor and satire, used for centuries to "deliver truth with a smile."

A spokesperson for Attorney General Anne Lopez told Just the News the department is "reviewing the court’s decision and has no further comment at this time."

Censorship is cheaper than promoting 'media literacy'

The ruling is notable for the breadth of its fault-finding with Hawaii's law and arguments, with Park dismissing its claim that Act 191 doesn't even apply to the Bee and O'Brien and rejecting its demand to hold the plaintiffs to "the impossible standard of identifying exact candidates or issues that their intended conduct will include" to even sue, in Park's words. 

She agreed with the plaintiffs that the law is "substantially overbroad …sprinkled with undefined and/or expansive standards that balloon its scope … imbued with imprecision and ambiguity" and likely no more effective at neutering deepfakes than an educational campaign by the state, which simply objected that "media literacy" would cost more than censorship.

Hawaii didn't dispute the plaintiffs intended to engage in protected political speech but simply claimed the statute "does not explicitly prohibit satire or parody" and narrowly construed the definition of "advertisement," neither of which Park found credible.

An advertisement is "any communication," except "sundry items" like bumper stickers, that identifies a candidate even "by implication" or an upcoming ballot issue and then advocates for or against that person or issue. 

Both plaintiffs "at least arguably" would violate the law based on their past and intended behavior, such as O'Brien's plan to post AI-generated images of Green "holding signs that read 'Free speech is cancelled' and 'Satire and parody require labels" and the frequency of Bee headlines being confused as "real news," fact-checked and "censored," Park said.

The three "enforcing agencies" for the law — AG Lopez's office, the Honolulu prosecuting attorney and the Campaign Spending Commission — have never "explicitly disavowed enforcement" against the plaintiffs, Park said.

The law also has an "expansive civil remedies provision" that lets actual or likely victims of materially deceptive media — candidates and organizations that represent voters "likely to be deceived" — bring actions against the plaintiffs, which present "enough of a collective threat to create a substantial risk of enforcement" against the Bee and O'Brien, Park ruled.

The judge said O'Brien, in particular, has "an actual and well-founded fear that the law will be enforced against" her by giving specific examples of speech she would make but for the law, rather than arguing "a generalized threat of chilled speech."

Act 191 discriminates by content and speaker, making it "presumptively invalid and subject to" the most stringent form of judicial scrutiny, Park found, regulating much further than "speech based on subject matter," which was the furthest Hawaii would concede. 

The disclaimer safe harbor "also constitutes content-based regulation—particularly in its application to compelled non-commercial speech," which "would impermissibly alter the content, intended effect, and message of their speech," the judge said. She emphasized it's also not applied to TV providers.

The law goes beyond the standard exemptions to First Amendment protection — defamation and fraud — by prohibiting distribution without actual harm, but simply "in reckless disregard of the risk of harming the reputation or electoral prospects" of a candidate, which Park called "speculative and unquantifiable."

While Hawaii has a legitimate interest in the integrity of its elections, it hasn't shown Act 191 is the "least restrictive means" to mitigate political deepfakes and generative AI or demonstrated "existing laws are insufficient," the judge concluded. The legislative record doesn't show if lawmakers ever considered measures less censorious than Act 191.

Park declared a draw between the parties' expert witnesses on what counts as effective mitigation, giving a slight edge to the plaintiffs' witnesses because Hawaii agreed that "strengthened media literacy skills and greater political sophistication" will better prepare voters to recognize and reject deepfakes.

The plaintiffs also showed how existing election integrity provisions and "statutory causes of action—such as privacy torts, copyright infringement, or defamation" — can remedy at least some of Hawaii's concerns, while the state "introduced no evidence addressing this issue," the judge said.

By prohibiting non-text information created by undefined "digital technology," the law covers "any alteration of an image" to any degree, Park said, noting the state's counsel admitted at a December hearing that Act 191 covers content "shared via private social media and direct message, even if viewed by only one person," with no actual harm.

"The breadth of Act 191’s scope is palpable" — covering "political satire, parody, commentary, and content that merely references a candidate 'by implication'" — and thus its "potential unconstitutional applications would consistently outweigh its constitutional ones," combating defamation and fraud, she said.

The law is so vague that its language "muddies the line between compliance and noncompliance by forcing speakers to base their conduct on their own risk assessment, rather than on clear, objective standards," and also lets enforcement agencies impose their own "value judgments and biases," Park said.