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< | Deepfake or Cheap Take?—Keep Vermont Weird. | >
> | "Deepfake" or Cheap Take?—Keep Vermont Weird. | | | -- By MichaelMacKay - 01 May 2025
The Grass is Always Greener... | |
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< | In Montpellier, this spring, state legislators have held public hearings on a senate bill that would restrict AI-generated content in elections, but such a measure aimed at “election purity” would hurt democratic participation in campaigning for public office. Last year, neighboring New Hampshire faced an out-of-state robocall from an AI-generated President Biden discouraging primary voters from the polls—inspiring Vermont’s S.23. Now, 21 states have enacted legislation against so-called “deepfakes” in elections, and last year, all three of Vermont’s neighbors enacted similar laws to curb AI-generated content. However, Massachusetts, New Hampshire, and New York also tend to view democratic participation differently than the Green Mountain State (e.g. each restores voting rights to felons immediately upon release from prison, whereas Vermont imposes no felon disenfranchisement). Hence, Vermont’s approach to “synthetic media” is problematic, even if unoriginal, and like most states, its legislature should avoid adopting such a law where: (1) making political speech appear to be dubious could violate the First Amendment, (2) required disclosures would inevitably cause confusion online, and (3) what well-funded parties can afford without AI is simply unattainable for those less resourced. | >
> | In Montpelier, this spring, state legislators have held public hearings on a senate bill that would restrict AI-generated content in elections, but such a measure aimed at “election purity” would hurt democratic participation in campaigning for public office. Last year, neighboring New Hampshire faced an out-of-state robocall from an AI-generated President Biden discouraging primary voters from the polls—inspiring Vermont’s S.23. Now, 21 states have enacted legislation against so-called “deepfakes” in elections, and last year, all three of Vermont’s neighbors enacted similar laws to curb AI-generated content. However, Massachusetts, New Hampshire, and New York also tend to view democratic participation differently than the Green Mountain State (e.g. each restores voting rights to felons immediately upon release from prison, whereas Vermont imposes no felon disenfranchisement). Hence, Vermont’s approach to “synthetic media” is problematic, even if unoriginal, and like most states, its legislature should avoid adopting such a law where: (1) making political speech appear to be dubious likely violates the First Amendment, (2) required disclosures would inevitably cause confusion online, and (3) what well-funded parties can afford without AI simply eludes those less resourced. | | |
The First Amendment Issue | |
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< | First, there is the freedom of speech issue where the law requires self-disclosure when anyone uses AI “with the intent… to influence the outcome of an election.” FIRE has already filed an objection on First Amendment grounds, citing Buckley v. Valeo, to argue that Vermont’s proposed “Subchapter 4. Use of Synthetic Media in Elections” would not survive strict scrutiny as a content-based measure. Here, there is some support, as U.S. District Court Judge Mendez recently granted a preliminary injunction against California’s similarly worded restriction on “synthetic media” in elections. Industry groups like TechNet? raise no objection—so long as their cloud providers and online services are not liable. But considering how quickly Meta folded fact-checking operations after the 2024 general election, it is hard to say whether such companies’ support actually pertains to “election purity.” Rather, a firm like Reddit would prefer to avoid obligations under Vermont’s S.23, which would chill anonymous speech, protected under McIntyre v. Ohio Elections Commission and part of the national discourse since at least The Federalist Papers. Ultimately, if candidates choose to communicate through a dice-throwing machine, their political speech should not bear any extra burdens beyond those upheld by the courts. | >
> | First, there is the freedom of speech issue where the law requires self-disclosure when anyone uses AI “with the intent… to influence the outcome of an election.” FIRE has already filed an objection on First Amendment grounds, citing Buckley v. Valeo, to argue that Vermont’s proposed “Subchapter 4. Use of Synthetic Media in Elections” would not survive strict scrutiny as a content-based measure. Here, there is some support, as U.S. District Court Judge Mendez recently granted a preliminary injunction against California’s similarly worded restriction on “synthetic media” in elections. Industry groups like TechNet? raise no objection—so long as their cloud providers and online services are not liable. But considering how quickly Meta folded fact-checking operations after the 2024 general election, it is hard to say whether such companies’ support actually pertains to “election purity.” Rather, a firm like Reddit would prefer to avoid obligations under Vermont’s S.23, which would chill anonymous speech, protected under _McIntyre v. Ohio Elections Commission_ and part of the national discourse since at least The Federalist Papers. Ultimately, if candidates choose to communicate through a dice-throwing machine, their political speech should not bear any extra burdens beyond those upheld by the courts. | | |
The Enforcement Issue | | | The Green Issue | |
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< | Above all, elections are expensive, and S.23 likely disarms minority points of view by removing relatively cheap and effective campaign tools. According to OpenSecrets? , the average successful campaign for the House of Representatives spent $2.79M in the last midterms, so what is “synthetic” to some with deep pockets may be an “equalizing” force to most without. Last year, candidates increasingly sought joint fundraising committees, as McCutcheon? struck down aggregate contribution limits, so where the evenly split FEC also allowed these fundraising entities to run ads without allocating costs, laws like Vermont’s S.23 would only make it harder for less well-off upstarts to compete post-Citizens United. Accordingly, the Vermont Green Party could use AI-generated content to more easily communicate against other parties or advocates of ending rampant homelessness could better mobilize on certain platforms and target hard-to-reach constituencies. | >
> | Above all, elections are expensive, and S.23 likely disarms minority points of view by removing relatively cheap and effective campaign tools. According to OpenSecrets? , a nonprofit organization promoting transparency in elections, the average successful campaign for the House of Representatives spent $2.79M in the last round of midterms, so what is “synthetic” to some with deep pockets may be an “equalizing” force to most without. Last year, candidates increasingly sought joint fundraising committees, as McCutcheon struck down aggregate contribution limits, so where the evenly split FEC also allowed these fundraising entities to run ads without allocating costs, laws like Vermont’s S.23 would only make it harder for less well-off insurgents to compete after Citizens United. Accordingly, the Vermont Green Party could use AI to more easily reach voters, whom other parties also target, or advocates of ending Vermont's homelessness crisis could leverage the same tools to coordinate action on behalf of harder-to-reach constituencies. | | | The Unafraid Approach | |
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< | Across the country, in an even smaller state, a candidate ran to become mayor of Cheyenne vis-à-vis an AI avatar. His campaign last year was unsuccessful, but his positive message on technology was clear (overcoming a now failed piece of legislation resembling S.23). In the end, no matter how Vermonters—whether activists, campaign managers, or other volunteers—choose to use "AI," they are still humans, and there are already laws for people on the books. As with any new technology, there are always unknowns, but as with this bill, fear appears to form the basis of restricting the use of AI-generated content "90 days" before an election, as California had also contemplated in 2019. But fear is no friend of the freedom of speech, and Vermont's House should reject the bill that the state senate passed in late March. Surely, if there is an “uncanny valley” in the Green Mountains, then state lawmakers should keep Vermont weird. | >
> | Across the country, in a smaller state, a candidate ran for mayor of Cheyenne as an AI avatar. His campaign last year was unsuccessful, but his positive message on technology was successful in other respects (overcoming a now failed piece of legislation resembling S.23). In the end, no matter how Vermonters—whether activists, campaign managers, or other volunteers—choose to use "AI," they are still humans, and there are already laws for people on the books. As with any new technology, there are always unknowns, but as with this bill, fear of the unknown seems to have led state senators to restrict AI-generated content "90 days" before an election, as California had also attempted back in 2019. But fear is no friend of the freedom of speech, and Vermont's House should reject the bill that the state senate passed in late March. Surely, if there is an “uncanny valley” in the Green Mountains, then state lawmakers should keep Vermont weird. | | |
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