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That involved a fake interview with Falwell published in Hustler. I don't see how that is legally distinct from putting his face on a body double What I unders

That involved a fake interview with Falwell published in Hustler. I don't see how that is legally distinct from putting his face on a body double What I understood from recently rewatching The People vs Larry Flynt was that LF and Hustler magazine were acquitted because nobody would reasonably believe that Jerry Falwell had actually had sex with his mother. It seems evident that the material difference between that case and today’s deepfake is how likely anyone would be to mistake it for the truth.

tptacek 7y ago
Yes; this is basic enough to be in the syllabus for the case: Held: In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, [[[ and the lower courts' finding that the ad parody was not reasonably believable must be accepted. ]]] "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here. Em. mine.
- sandworm101 7y ago
  Exactly. So a deepfake of a clean-cut star, say Taylor Swift, in an over-the-top hardcore porn clip would not reasonably be considered real and so could be a legitimate parody. I forgot to mention perhaps the greatest political porn title: "Who's Nailin Palin?" ... the perfect recent embodiment of the Falwell holding.
  - tptacek 7y ago
    That's not at all the case, no. If you use extraordinary new computing facilities to create a convincing facsimile of a public person having sex with someone else on camera, you're very unlikely to skate on the "reasonable person" standard. I remain interested in how familiar you are with deepfake technology, because it is nothing at all like the Falwell parody in Hustler or the porn parody film you just cited.
    - sandworm101 7y ago
      I am well aware of what can be done having once worked in film/TV production. But the quality of the fake is irrelevant. Falwell involved an absolutely perfect fake. It was a text interview. There was nothing in the interview, beyond the nature of the content, that suggested it wasn't real. They even used his real face in the portrait. Surely more than a few people fell for the gag. The parallels to a modern deepfake porn parody are clear. https://frontpageconfidential.com/larry-flynt-supreme-court-hustler-falwell/ https://frontpageconfidential.com/larry-flynt-supreme-court-...
      - adamlett 7y ago
        But the quality of the fake is irrelevant. According to whom? Falwell involved an absolutely perfect fake If that were true, written accounts would be as video when used as evidence in a court of law. You may be surprised to learn that this is not in fact the case.
      - tptacek 7y ago
        This doesn't even cohere as an argument. The "absolutely perfect fake" you're referring to was a parody (print) Campari ad with nothing but a headshot of Falwell and an "interview" that opened with "My first time was in an outhouse outside Lynchburg, Virginia"; "Wasn't it a little cramped?"; "Not after I kicked the goat out". A deepfake uses GANs to synthesize a convincing video of its subject, something that wasn't even technologically possible a few years ago. As I showed you a moment ago, even the syllabus of Rehnquist's opinion acknowledges that no reasonable person could have believed the Hustler ad to be true. I'm becoming convinced that you're arguing for the sake of arguing.
- zaroth 7y ago
  Thank you for posting that. I’m not sure I ever fully grok’d the “outrageousness” standard. So if you say something horrible about a public figure, knowing that it is false, and presenting it as true, if it’s outrageous enough to be obvious parody then it’s permitted. But if it’s stated as truth and emphatically presented as truthful and not as parody, then the public figure exception is lost? Very hard not to wade into the quagmire of horrible statements people make about a certain politician which a large portion of the country accept as truly factual in this context...
  - justforyou 7y ago
    Relevant trivia: Penn and Tellers showtime show "Bullshit" purposefully used vulgar hyperbole as a shield against litigation - even though they explored/debunked serious topics.
  - deleted 7y ago
    [deleted]
0815test 7y ago
One could definitely use "deepfake" tech to make transparently-untrue and highly fanciful depictions/parodies though. It's not so much about the technology itself as how it gets used.
- adamlett 7y ago
  It’s both. If there was a way to state the law in such a way that it was always clear when and how to apply it, there would be no need for courts and judges.

tptacek 7y ago

Yes; this is basic enough to be in the syllabus for the case: Held: In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, [[[ and the lower courts' finding that the ad parody was not reasonably believable must be accepted. ]]] "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here. Em. mine.

sandworm101 7y ago
Exactly. So a deepfake of a clean-cut star, say Taylor Swift, in an over-the-top hardcore porn clip would not reasonably be considered real and so could be a legitimate parody. I forgot to mention perhaps the greatest political porn title: "Who's Nailin Palin?" ... the perfect recent embodiment of the Falwell holding.
- tptacek 7y ago
  That's not at all the case, no. If you use extraordinary new computing facilities to create a convincing facsimile of a public person having sex with someone else on camera, you're very unlikely to skate on the "reasonable person" standard. I remain interested in how familiar you are with deepfake technology, because it is nothing at all like the Falwell parody in Hustler or the porn parody film you just cited.
  - sandworm101 7y ago
    I am well aware of what can be done having once worked in film/TV production. But the quality of the fake is irrelevant. Falwell involved an absolutely perfect fake. It was a text interview. There was nothing in the interview, beyond the nature of the content, that suggested it wasn't real. They even used his real face in the portrait. Surely more than a few people fell for the gag. The parallels to a modern deepfake porn parody are clear. https://frontpageconfidential.com/larry-flynt-supreme-court-hustler-falwell/ https://frontpageconfidential.com/larry-flynt-supreme-court-...
    - adamlett 7y ago
      But the quality of the fake is irrelevant. According to whom? Falwell involved an absolutely perfect fake If that were true, written accounts would be as video when used as evidence in a court of law. You may be surprised to learn that this is not in fact the case.
    - tptacek 7y ago
      This doesn't even cohere as an argument. The "absolutely perfect fake" you're referring to was a parody (print) Campari ad with nothing but a headshot of Falwell and an "interview" that opened with "My first time was in an outhouse outside Lynchburg, Virginia"; "Wasn't it a little cramped?"; "Not after I kicked the goat out". A deepfake uses GANs to synthesize a convincing video of its subject, something that wasn't even technologically possible a few years ago. As I showed you a moment ago, even the syllabus of Rehnquist's opinion acknowledges that no reasonable person could have believed the Hustler ad to be true. I'm becoming convinced that you're arguing for the sake of arguing.
zaroth 7y ago
Thank you for posting that. I’m not sure I ever fully grok’d the “outrageousness” standard. So if you say something horrible about a public figure, knowing that it is false, and presenting it as true, if it’s outrageous enough to be obvious parody then it’s permitted. But if it’s stated as truth and emphatically presented as truthful and not as parody, then the public figure exception is lost? Very hard not to wade into the quagmire of horrible statements people make about a certain politician which a large portion of the country accept as truly factual in this context...
- justforyou 7y ago
  Relevant trivia: Penn and Tellers showtime show "Bullshit" purposefully used vulgar hyperbole as a shield against litigation - even though they explored/debunked serious topics.
- deleted 7y ago
  [deleted]

0815test 7y ago

One could definitely use "deepfake" tech to make transparently-untrue and highly fanciful depictions/parodies though. It's not so much about the technology itself as how it gets used.

adamlett 7y ago
It’s both. If there was a way to state the law in such a way that it was always clear when and how to apply it, there would be no need for courts and judges.