In Too Deep: Navigating an Unpredictable Algorithm

This note explores the intersection of deepfakes, a newfound and seemingly ubiquitous technology, and the protections granted by the Free Speech Clause under the First Amendment. At this juncture, society has failed to develop an infallible form of deepfake detection technology despite persistent and diligent efforts by individuals and entities alike. Hyper realistic deepfake technology has and will continue to be utilized by bad actors as a tool for advancing their nefarious goals, resulting in cognizable harm to individuals and society at large. This note evaluates the current state of deepfake technology and the potential obstacle that traditional First Amendment principles could pose for regulators aiming to inhibit the malicious harms stemming from the use of this technology by bad actors. Ultimately, this note concludes that federal legislation requiring the creators of deepfake technology to conspicuously label their deepfake creation as having been “altered” is necessary to ensure that this rapidly developing technology does not deceive and harm the general public’s trust in media.