The Hill has an interesting story detailing significant developments already, including an important comparison between two dueling ads from the Trump and DeSantis campaigns:
“After DeSantis announced his campaign during a Twitter Spaces conversation with company CEO Elon Musk, Trump posted a deepfake video — which is a digital representation made from AI that fabricates realistic-looking images and sounds — parodying the announcement on Truth Social. Donald Trump Jr. posted a deepfake video of DeSantis edited into a scene from the television show “The Office,” and the former president has shared AI images of himself.
“Last week, DeSantis’s campaign released an ad that used seemingly AI-produced images of Trump embracing Anthony Fauci, the former director of the National Institute of Allergy and Infectious Diseases.”
From these descriptions, I agree with the assessment that the DeSantis ad against Trump crosses a line that the Trump parody of DeSantis does not:
“Critics noted that DeSantis’s use of the generated photo of Trump and Fauci was deceptive because the video does not disclose the use of AI technology.
““Using AI to create an ominous background or strange pictures, that’s not categorically different than what advertising has long been,” said Robert Weissman, president of the progressive consumer rights advocacy group Public Citizen. “It doesn’t involve any deception of voters.”
““[The DeSantis ad] is fundamentally deceptive,” he said. “That’s the big worry that voters will be tricked into believing things are true that are not.”
Insofar as the DeSantis ad deliberately fabricates a counterfeit episode of Trump embracing Fauci that never happened, passing it off as a real photo of an actual event, I don’t believe the ad is protected by the First Amendment under New York Times v. Sullivan and related cases. If the ad is defamatory against Trump, as it well might be given Fauci’s reputation among Republican primary voters, I would think Trump plausibly might have an actionable defamation case against the DeSantis campaign with the possibility of punitive damages.
To the extent that the DeSantis campaign believes the Court’s decision in Alvarez (the stolen valor case) gives complete First Amendment protection to any knowing falsehood, I think that’s a mistake. Depending upon how a statute is written (it needs to be narrowly tailored, etc.), a deliberately counterfeit photo or video pretending to be real could be subject to criminal prosecution in addition to civil defamation liability.
UPDATES: (1) POLITICO also has a story on this topic that discusses the DeSantis ad. (2) On the application of the First Amendment to the specific problem of “counterfeit campaign speech,” see Rebecca Green’s important law review article addressing this topic.