Defamation or Impersonation? Working Towards a Legislative Remedy for Deepfake Election Misinformation

This Note explores how election deepfakes fit into the broader frameworks of defamation and impersonation law and posits that Congress and the judiciary may remedy the threat by borrowing from both areas of law. It builds on existing scholarship that has addressed the issue of deepfakes in both the electoral context as well as the general context. Furthermore, it expands upon scholars’ prior identification of these areas of law as potential avenues for regulating election deepfakes.11 It posits that solutions to election deepfakes offered by Professors Rebecca Green and Rick Hasen could go even further while still surviving constitutional scrutiny, diverging from their proposals by suggesting that disclosure and timing-related exemptions from liability are not constitutionally necessary. Specifically, it calls for the passage of a federal law marrying defamation and impersonation law by establishing a criminal offense when a speaker “creates and publishes, with actual malice, doctored audio or visual content depicting a candidate for office, in order to deceive voters, and thereby gain electoral advantage relating to the target of the communication.” This abstract has been taken from the author's introduction.