Kohls v. Bonta et al

Filing 14

ORDER signed by Senior District Judge John A. Mendez on 10/02/24 GRANTING 6 Motion for Preliminary Injunction. Defendants Rob Bonta and Shirley N. Weber and their agents, employees, public servants, officers and persons acting in concert with them are ENJOINED from enforcing AB 2839 except for the audio only severed portion of the statute. The bond requirement under Federal Rule 65(c) is WAIVED. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER KOHLS,

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No.

2:24-cv-02527 JAM-CKD

Plaintiff,
v.
ROB BONTA, in his official
capacity as Attorney General
of the State of California,
and SHIRLEY N. WEBER, in her
official capacity as
California Secretary of
State,

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ORDER GRANTING PLAINTIFF’S
MOTION FOR PRELIMINARY
INJUNCTION

Defendants.

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I.

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INTRODUCTION

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Plaintiff Christopher Kohls (aka “Mr. Reagan”) is an

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individual who creates digital content about political figures.

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His videos contain demonstrably false information that include

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sounds or visuals that are significantly edited or digitally

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generated using artificial intelligence (“AI”).

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ECF No. 1.

Plaintiff’s videos are considered by him to be parody

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or satire.

In response to videos posted by Plaintiff parodying
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Complaint, ¶ 5,

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presidential candidate Kamala Harris and other AI generated

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“deepfakes,”1 the California legislature enacted AB 2839.

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AB 2839, according to Plaintiff, would allow any political

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candidate, election official, the Secretary of State, and

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everyone who sees his AI-generated videos to sue him for damages

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and injunctive relief during an election period which runs 120

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days before an election to 60 days after an election.

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Prelim. Inj. (“Mot.”), p. 2, ECF No. 6-1.

Motion for

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On September 17, 2024 - the day AB 2839 was signed by the

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Governor – Plaintiff filed this lawsuit and the instant motion

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for a preliminary injunction.

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Plaintiff seeks an Order enjoining Defendants from enforcing

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AB 2839.

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Fourteenth Amendments, both facially and as applied.

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Specifically, Plaintiff argues that the statute infringes on his

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right to free speech and is unconstitutionally vague.

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Defendants, on the other hand, contend that AB 2839 is

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constitutional under the First Amendment as a restriction on

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knowing falsehoods that cause tangible harm.

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Opposition (“D. Opp’n”), ECF No. 9.

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meets the strict scrutiny standard, contains a safe harbor

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provision for parody and satire that is constitutional, and is

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not unconstitutionally vague.

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Reply”) responding to the State’s counterarguments.

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Plaintiff’s Reply Brief, ECF No. 10.

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See Mot., ECF Nos. 1, 6.

Plaintiff contends that AB 2839 violates the First and

See Defendant’s

They argue that this statute

Plaintiff filed a Reply brief (“P.
See

Defendants define “deepfake” as a “manipulated piece of media
where a person’s likeness, image or void is digitally created or
swapped with another person’s.” Opposition to Prelim. Injunction
Motion, p. 3, fn. 5. ECF No. 9.
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AB 2839 does not pass constitutional scrutiny because the

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law does not use the least restrictive means available for

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advancing the State’s interest here.

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argue, counter speech is a less restrictive alternative to

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prohibiting videos such as those posted by Plaintiff, no matter

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how offensive or inappropriate someone may find them.

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‘“Especially as to political speech, counter speech is the tried

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and true buffer and elixir,” not speech restriction.’

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Prelim. Inj., p. 13 (citations omitted), ECF No. 6-1.

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As Plaintiffs persuasively

Motion for

While California has a valid interest in protecting the

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integrity and reliability of the electoral process, AB 2839 is

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unconstitutional because it lacks the narrow tailoring and least

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restrictive alternative that a content based law requires under

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strict scrutiny.

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For all the reasons discussed below, the Court finds that

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Plaintiff is entitled to a preliminary injunction.2

Motion for Prel. Inj., pp. 12-13, ECF No. 6-1.

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II.

BACKGROUND

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A.

Plaintiff

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Plaintiff Kohls is a social media influencer with roughly

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80,000 followers on X and 360,000 subscribers on YouTube.

Compl.

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¶¶ 4, 17, ECF No. 1.

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including the X account “@MrReaganUSA” and the screen name “Mr.

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Reagan” on YouTube and Facebook, where he posts (what he alleges

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is) humorous political content often featuring politicians

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mocking their own candidacies.

Kohls owns accounts on various platforms,

Mot. at 4.

For example, on July

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for September 30, 2024.
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26, 2024, Kohls posted a video titled “Kamala Harris Campaign Ad

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PARODY” to X and YouTube which depicts Vice President Kamala

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Harris in her campaign ad with artificially altered audio.

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Significantly, Vice President Harris’s voice has been manipulated

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to say things she has not said including that she is “the

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ultimate diversity hire,” and that she has spent “four years

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under the tutelage of the ultimate deep state puppet.”

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same day, Elon Musk shared the video to his X account where his

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post generated over 100 million views.

Compl., ¶ 8.

Id.

Id.

That

On July 28,

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2024 California Governor Gavin Newsom responded to the video on X

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stating that “[m]anipulating a voice in an ‘ad’ like

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[Plaintiff’s] should be illegal.”

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incident, the California legislature passed two bills addressing

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artificially manipulated election content, which the Governor

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signed into law on September 17, 2024.

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these bills, AB 2839 “Elections: deceptive media in

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advertisements,” is the focus of Plaintiff’s Complaint and the

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motion for injunctive relief pending before this Court.

Compl., ¶ 9.

Following this

Compl. ¶ 11.

One of

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B.

Overview of AB 2839

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AB 2839 aims to regulate a broad spectrum of election-

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related content that is “materially deceptive.”

Cal. Elec. Code

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§ 20012(b)(1).

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person, committee, or other entity shall not . . . with malice,

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knowingly distribute an advertisement or other election

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communication containing materially deceptive content” of a

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candidate for office “portrayed as doing or saying something that

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the candidate did not do or say if the content is reasonably

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likely to harm the reputation or electoral prospects of a

In relevant part, AB 2839 provides that “[a]

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candidate.”

Id. § 20012(b)(1)(A).

Distribution of materially

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deceptive content of “[a]n elections official” or “[a]n elected

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official . . . doing or saying something in connection with an

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election in California that the elected official did not do or

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say” is also restricted “if the content is reasonably likely to

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falsely undermine confidence in the outcome of one or more

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election contests.”

Id. § 20012(b)(1)(B),(C).

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Materially deceptive content is defined as content that has

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been “digitally created or modified” such that it “would falsely

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appear to a reasonable person to be an authentic record of the

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content depicted in the media.” Id. § 20012(f)(8).

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restrictions apply for the 120 days before any election in

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California and, except for depictions of a candidate, for 60 days

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after the election.

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recipient of the specified election-related materially deceptive

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content to bring suit against the distributor for general or

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special damages.

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Id. § 20012(c).

These

The statute permits any

Id. § 20012(d).

In terms of carveouts, the statute contains a safe harbor

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for candidates portraying themselves as long as these videos are

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labelled with a disclosure “no smaller than the largest font size

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of other text appearing in the visual media.”

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This safe harbor also exempts deceptive content that constitutes

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satire or parody as long as these media are labelled in

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compliance with the same aforementioned disclosure requirement.

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Id. § 20012(b)(3).

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///

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///

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///
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Id. § 20012(b)(2).

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C.

Motion for Preliminary Injunction

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Because AB 2839 is the subject of the motion before this

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Court, the Court analyzes this motion for preliminary injunction

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based on the relevant allegations contained in Counts IV through

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VIII of Plaintiff’s Complaint.

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has sufficiently met the standard for preliminary injunction

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based on the free speech claims in Count IV (First Amendment

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facial challenge), Count VII (First Amendment compelled speech

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claim), and Count VIII (state constitutional challenge).

The Court finds that Plaintiff

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Accordingly, the Court need not reach the remaining as applied

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challenge (Count V) or the Fourteenth Amendment void for

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vagueness challenge (Count VI).

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III. OPINION

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A.

Legal Standard

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Plaintiff seeks a preliminary injunction of the statute

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because it violates his First and Fourteenth Amendment rights by

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suppressing his speech or compelling unduly burdensome speech.

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“A party can obtain a preliminary injunction by showing that

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(1) it is ‘likely to succeed on the merits,’ (2) it is ‘likely

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to suffer irreparable harm in the absence of preliminary

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relief,’ (3) ‘the balance of equities tips in [its] favor,’ and

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(4) ‘an injunction is in the public interest.’”

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Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir.

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2017) ("VidAngel") (quoting Winter v. Nat. Res. Def. Council,

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Inc., 555 U.S. 7, 20 (2008)).

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Disney

Because Plaintiff’s content is subject to the threat of

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AB 2839’s enforcement and Defendants do not dispute Plaintiff’s

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standing to challenge the statute, the Court finds that
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Plaintiff has standing to challenge AB 2839 and proceeds to the

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preliminary injunction analysis.

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B.

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Likelihood of Success on the Merits
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See Mot. at 9.

Kohls is Likely to Succeed in Showing that
AB 2839 Facially Violates the First Amendment

“To provide breathing room for free expression,” the

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Supreme Court has “substituted a less demanding though still

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rigorous standard” for facial challenges.

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LLC, 144 S.Ct. 2383, 2397 (2024) (cleaned up) (quoting United

Moody v. NetChoice,

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States v. Hansen, 599 U.S. 762, 769 (2023)); see also Tucson v.

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City of Seattle, 91 F.4th 1318, 1327 (9th Cir. 2024).

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law’s unconstitutional applications substantially outweigh its

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constitutional ones,” then a court may sustain a facial

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challenge to the law and strike it down.

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2397.

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has two parts: first, the courts must “assess the state laws’

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scope”; and second, the courts must “decide which of the laws’

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applications violate the First Amendment, and . . . measure them

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against the rest.”

“[I]f the

Moody, 144 S. Ct. at

As Moody sets forth, a First Amendment facial challenge

Id. at 2398.

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Plaintiff argues that AB 2839 is unconstitutional because

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it discriminates against political speech based on content and

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is overbroad.

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a restriction on knowing falsehoods that fall outside of the

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category of false speech protected by the First Amendment as

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articulated in United States v. Alvarez, 567 U.S. 709 (2012).

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See D. Opp’n at 9.

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See Mot. at 11.

Defendants argue that AB 2839 is

While Defendants attempt to analogize AB 2839 to a
restriction on defamatory statements, the statute itself does
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not use the word “defamation” and by its own definition, extends

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beyond the legal standard for defamation to include any false or

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materially deceptive content that is “reasonably likely” to harm

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the “reputation or electoral prospects of a candidate.”

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Elec. Code § 20012(b) (emphasis added).

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does much more than punish potential defamatory statements since

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the statute does not require actual harm and sanctions any

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digitally manipulated content that is “reasonably likely” to

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“harm” the amorphous “electoral prospects” of a candidate or

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Cal.

At face value, AB 2839

elected official, Id. § 20012(b)(1)(A), (C).
Moreover, all “deepfakes” or any content that “falsely

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appear[s] to a reasonable person to be an authentic record of

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the content depicted in the media” are automatically subject to

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civil liability because they are categorically encapsulated in

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the definition of “materially deceptive content” used throughout

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the statute.

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manipulated content that does not implicate reputational harm

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but could arguably affect a candidate’s electoral prospects is

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swept under this statute and subject to civil liability.

Id. § 20012(f)(8).

Thus, even artificially

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The statute also punishes such altered content that depicts

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an “elections official” or “voting machine, ballot, voting site,

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or other property or equipment” that is “reasonably likely” to

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falsely “undermine confidence” in the outcome of an election

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contest.

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lacking any objective metric and being difficult to ascertain,

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there are many acts that can be “do[ne] or [words that can be]

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sa[id]” that could harm the “electoral prospects” of a public

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official or “undermine confidence” in an election.

Id. § 20012(b)(1)(B), (D).

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On top of these provisions

Id.

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§ 20012(b)(1)(A)-(D).

Almost any digitally altered content,

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when left up to an arbitrary individual on the internet, could

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be considered harmful.

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numbers on voter turnout could be considered false content that

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reasonably undermines confidence in the outcome of an election

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under this statute.

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depictions when shown to a variety of individuals may not

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ultimately influence electoral prospects or undermine confidence

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in an election at all.

For example, AI-generated approximate

On the other hand, many “harmful”

As Plaintiff persuasively points out, AB

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2839 “relies on various subjective terms and awkwardly-phrased

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mens rea,” which has the effect of implicating vast amounts of

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political and constitutionally protected speech.

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Mot. at 16.

Defendants further argue that AB 2839 falls into the

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possible exceptions recognized in Alvarez for lies that involve

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“some . . . legally cognizable harm.”

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However, the legally cognizable harms Alvarez mentions does not

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include the “tangible harms to electoral integrity” Defendants

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claim that AB 2839 penalizes.

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potentially unprotected lies Alvarez cognized were limited to

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existing causes of action such as “invasion of privacy or the

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costs of vexatious litigation”; “false statements made to

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Government officials, in communications concerning official

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matters”; and lies that are “integral to criminal conduct,” a

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category that might include “falsely representing that one is

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speaking on behalf of the Government, or . . . impersonating a

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Government officer.”

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implicates none of the legally cognizable harms recognized by

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Alvarez and thereby unconstitutionally suppresses broader areas

567 U.S. 709, 719 (2012).

See D. Opp’n at 2.

567 U.S. at 719-722 (2012).

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Instead, the

AB 2839

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of false but protected speech.
Even if AB 2839 were only targeted at knowing falsehoods

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that cause tangible harm, these falsehoods as well as other

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false statements are precisely the types of speech protected by

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the First Amendment.

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Court held that even deliberate lies (said with “actual malice”)

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about the government are constitutionally protected.

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254, 283 (1964).

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“prosecutions for libel on government” — including civil

In New York Times v. Sullivan, the Supreme

376 U.S.

The Supreme Court further articulated that

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liability for such libel — “have [no] place in the American

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system of jurisprudence.”

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City of Chicago v. Tribune Co. 307 Ill. 595 (Sup. Ct. 1923));

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see also Rosenblatt v. Baer, 383 U.S 75, 81 (1966) (holding that

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“the Constitution does not tolerate in any form” “prosecutions

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for libel on government”).

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the people’s right to criticize government and government

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officials apply even in the new technological age when media may

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be digitally altered: civil penalties for criticisms on the

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government like those sanctioned by AB 2839 have no place in our

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system of governance.

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a.

376 U.S. 254, 291 (1964) (quoting

These same principles safeguarding

AB 2839 Does Not Pass Strict Scrutiny and is
Not Narrowly Tailored

AB 2839 specifically targets speech within political or

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electoral content pertaining to candidates, electoral officials,

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and other election communication, making it a content-based

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regulation that seeks to limit public discourse.

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based regulation “target[s] speech based on its communicative

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content,” restricting discussion of a subject matter or topic.
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A content-

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Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

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general matter,” a content-based regulation is “presumptively

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unconstitutional and may be justified only if the government

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proves that [it is] narrowly tailored to serve compelling state

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interests.”

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(quoting Reed, 576 U.S. at 163).

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acceptable and unacceptable content based on its purported truth

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or falsity and is an archetypal content-based regulation that

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our constitution considers dubious and subject to strict

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“As a

Nat’l Inst. of Fam. & Life Advocs., 585 U.S. at 766
Here, AB 2839 delineates

scrutiny.
Under strict scrutiny, a state must use the “least

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restrictive means available for advancing [its] interest.”

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NetChoice, LLC v. Bonta, 113 F.4th 1102, 1121 (9th Cir. 2024)

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(internal quotation omitted).

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“permit speech-restrictive measures when the state may remedy

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the problem by implementing or enforcing laws that do not

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infringe on speech.”

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1125 (9th Cir. 2020) (citing cases).

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The First Amendment does not

IMDb.com, Inc. v. Becerra, 962 F.3d 1111,

While the Court gives substantial weight to the fact that

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the California Legislature has a “compelling interest in

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protecting free and fair elections,” this interest must be

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served by narrowly tailored ends.

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§ 20012(a)(4).

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“to preserve an uninhibited marketplace of ideas in which truth

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will ultimately prevail.”

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476 (2014) (quoting FCC v. League of Women Voters of Cal., 468

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U.S. 364, 377 (1984)).

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that “debate on public issues [] be uninhibited, robust, and

Cal. Elec. Code

One of the First Amendment’s core purposes is

McCullen v. Coakley, 573 U.S. 464,

It is essential to a healthy democracy

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wide-open” which may create a necessary sacrifice that such

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dialogue “include[s] vehement, caustic, and sometimes

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unpleasantly sharp attacks on government and public officials.”

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New York Times v. Sullivan, 376 U.S. 254, 270 (1964).

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be time to expose through discussion the falsehood and

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fallacies, to avert the evil by the processes of education, the

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remedy to be applied is more speech, not enforced silence.”

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Whitney v. California, 274 U.S. 357, 377 (1927).

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“If there

Supreme Court precedent illuminates that while a well-

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founded fear of a digitally manipulated media landscape may be

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justified, this fear does not give legislators unbridled license

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to bulldoze over the longstanding tradition of critique, parody,

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and satire protected by the First Amendment.

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Facebook posts, and X tweets are the newspaper advertisements

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and political cartoons of today, and the First Amendment

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protects an individual’s right to speak regardless of the new

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medium these critiques may take.

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action such as privacy torts, copyright infringement, or

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defamation already provide recourse to public figures or private

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individuals whose reputations may be afflicted by artificially

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altered depictions peddled by satirists or opportunists on the

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internet.

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less restrictive means of regulating artificially manipulated

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content in the statute itself.

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statute attempt to implement labelling requirements, which if

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narrowly tailored enough, could pass constitutional muster.

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Ultimately, as Plaintiff’s motion points out, despite AB 2839’s

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attempts at a limited construction, the statute encompasses a

YouTube videos,

Other statutory causes of

Additionally, AB 2839 by its own terms proposes other

The safe harbor carveouts of the

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broad range of election-related content that would be

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constitutionally protected even if false and cannot withstand

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First Amendment scrutiny.

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In addition to encumbering protected speech, there is a

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more pressing reason to meet statutes that aim to regulate

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political speech, like AB 2839 does, with skepticism.

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Justices Breyer and Alito in Alvarez, “[t]here are broad areas

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in which any attempt by the state to penalize purportedly false

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speech would present a grave and unacceptable danger of

To quote

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suppressing truthful speech” 567 U.S. 709, 731 (2012) (Breyer,

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J., concurring in the judgment).

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speech, “[t]he point is not that there is no such thing as truth

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or falsity in these areas or that the truth is always impossible

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to ascertain, but rather that it is perilous to permit the state

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to be the arbiter of truth” in certain settings.

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(Alito, J., dissenting).

In analyzing regulations on

Id. at 751-52

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The political context is one such setting that would be

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especially “perilous” for the government to be an arbiter of

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truth in.

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would “open[] the door for the state to use its power for

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political ends.”

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make a valuable contribution to public debate, since it brings

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about ‘the clearer perception and livelier impression of truth,

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produced by its collision with error.’”

25

Times Co., supra, at 279, n. 19).

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electoral politics are at issue, the First Amendment has almost

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unequivocally dictated that Courts allow speech to flourish

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rather than uphold the State’s attempt to suffocate it.

AB 2839 attempts to sterilize electoral content and

Id.

“Even a false statement may be deemed to

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Id. (quoting New York

When political speech and

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Upon weighing the broad categories of election related

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content both humorous and not that AB 2839 proscribes, the Court

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finds that AB 2839’s legitimate sweep pales in comparison to the

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substantial number of its applications, as in this case, which

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are plainly unconstitutional.

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Plaintiff is likely to succeed on a First Amendment facial

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challenge to the statute.

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b.

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10

Therefore, the Court finds that

AB 2839’s Disclosure Requirement Constitutes
Compelled Speech that is Unduly Burdensome

For parody or satire videos, AB 2839 requires a disclaimer

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to air for the entire duration of a video in text that is no

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smaller than the largest font size used in the video.

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Elec. Code § 20012(b).

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requirement renders his video almost unviewable, obstructing the

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entirety of the frame.

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this requirement is concerning because parody and satire have

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relayed creative and important messages in American politics.

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As the Supreme Court has noted, “[d]espite their sometimes

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caustic nature, from the early cartoon portraying George

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Washington as an ass down to the present day, graphic depictions

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and satirical cartoons have played a prominent role in public

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and political debate.”

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46, 54 (1988).

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Cal.

In Plaintiff Kohls’ case, this

Compl. ¶ 98.

The obstructiveness of

Hustler Magazine v. Falwell, 485 U.S.

Defendants do not argue that Plaintiff Kohls’ video

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qualifies as commercial speech and the Court does not find

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Plaintiff’s parody to be an actual advertisement.

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argument could be made that some parodies or satire are in

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effect commercial speech, a vast majority of these creations are
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While an

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simply humorous artistic endeavors which are not subject to

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commercial speech regulations.

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this one, AB 2839’s disclosure requirement forces parodists and

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satirists to “speak a particular message” that they would not

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otherwise speak, which constitutes compelled speech that dilutes

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their message.

7

Becerra, 585 U.S. 755, 766 (2018); X Corp. v. Bonta, 2024 WL

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4033063, at *6 (9th Cir. Sept. 4, 2024).

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In a non-commercial context like

See Nat’l Inst. Of Family and Life Advocates v.

Even if some artificially altered content were subject to a

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lower standard for commercial speech or “exacting scrutiny”

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instead of strict scrutiny as the Defendants argue (D. Opp’n at

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20) AB 2839 could not meet its “burden to prove that the . . .

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notice is neither unjustified nor unduly burdensome” under

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NIFLA, 585 U.S. at 776, or that the disclosure is “narrowly

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tailored” pursuant to the standard articulated for political

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speech disclosures in Smith v. Helzer, 95 F.4th 1207, 1214 (9th

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Cir. 2024).

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statement in this case and many other cases would take up an

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entire screen, which is not reasonable because it almost

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certainly “drowns out” the message a parody or satire video is

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trying to convey.

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requirement is overly burdensome and not narrowly tailored, it

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is similarly unconstitutional.

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2.

AB 2839’s size requirements for the disclosure

Thus, because AB 2839’s disclosure

Id. at 778.

Kohls is Likely to Succeed on His California
State Constitutional Free Speech Claim

Art. 1 Section 2(a) of California’s Constitution states

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that “[e]very person may freely speak, write and publish his or

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her sentiments on all subjects,” and “[a] law may not restrain
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or abridge liberty of speech. . . .”

Cal. Const. art I, § 2(a).

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Federal courts in California considering state and federal free

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speech claims have interpreted these rights as largely

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coextensive, with California's Liberty of Speech Clause

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providing broader protections than the First Amendment.

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e.g., Bolbol v. City of Daly City, 754 F. Supp. 2d 1095, 1105

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(N.D. Cal. 2010) (citing Kuba v. 1–A Agr. Ass’n, 387 F.3d 850,

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856 (9th Cir. 2004) and Los Angeles Alliance for Survival v.

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City of Los Angeles, 22 Cal.4th 352, 366 (2000)); Campbell v.

See

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City of Milpitas, 2015 WL 1359311 at *13 (N.D. Cal. 2015);

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Citizens for Free Speech, LLC v. Cnty. of Alameda, 114 F. Supp.

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3d 952, 971–72 (N.D. Cal. 2015).

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Under current case law, the California state right to

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freedom of speech is at least as protective as its federal

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counterpart.

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federal First Amendment facial challenge, it follows that

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Plaintiff is also likely to succeed on his state free speech

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claim.

19

discussed above, the Court finds that AB 2839 is also

20

unconstitutional under California’s free speech provision and

21

finds that Plaintiff is likely to succeed on his state

22

constitutional claim.

Given that Plaintiff is likely to succeed on the

In accordance with the First Amendment facial analysis

23

C.

Remaining Preliminary Injunction Factors

24

Plaintiff asserts that the remaining Winter factors -

25

irreparable harm, balance of equities, and the public interest -

26

weigh in favor of granting the motion for preliminary

27

injunction.

28

to Plaintiff is minimal and that a balance of the equities and

Mot. at 21, 22.

Defendants argue that the burden

16

1

public interest factors would only weigh in favor of injunctive

2

relief if Plaintiff were able to show a constitutional

3

violation.

4

arguments carry the day.

5

See D. Opp’n at 24.

Once again, Plaintiff’s

As set forth in the initial analysis, Plaintiff has shown a

6

likelihood of success in mounting a First Amendment

7

constitutional challenge to AB 2839.

8

harm, Plaintiff Kohls has also demonstrated that his content is

9

a target of AB 2839 which exposes him to potential civil

In terms of irreparable

10

liabilities and that he faces an imminent and ongoing First

11

Amendment constitutional violation.

12

21.

13

repeatedly held that the loss of First Amendment freedoms, for

14

even minimal periods of time, unquestionably constitutes

15

irreparable injury.”

16

1196, 1207–08 (9th Cir. 2009) (internal quotation omitted;

17

citing cases).

18

experience irreparable harm because his speech would be

19

unconstitutionally chilled if the motion for preliminary

20

injunction were not granted.

Compl. ¶¶ 99-102; Mot. at

Both the Ninth Circuit and the Supreme Court “have

Klein v. City of San Clemente, 584 F.3d

Thus, the Court finds that Plaintiff Kohls would

21

Once Plaintiff satisfies the first two factors (likelihood

22

of success on the merits and irreparable harm), the traditional

23

injunction test calls for assessing the harm to the opposing

24

party and weighing the public interest.

25

Defendants seem to hedge their analysis of these remaining

26

factors on the assertion that Plaintiff Kohls has not shown a

27

likelihood of success on the merits and do not address whether a

28

balancing of the equities or public interest analysis in the
17

Winter, supra, at 20.

1

alternative case where a constitutional violation is found would

2

weigh in their favor.

3

not persuaded that a balance of equities or public interest

4

analysis does not weigh in favor of a preliminary injunction.

5

While a preliminary injunction is pending, there may be some

6

hardship on the State.

7

of California has a strong interest in preserving election

8

integrity and addressing artificially manipulated content.

9

However, California’s interest and the hardship the State faces

See D. Opp’n at 24.

Thus, the Court is

The record demonstrates that the State

10

are minimal when measured against the gravity of First Amendment

11

values at stake and the ongoing constitutional violations that

12

Plaintiff and other similarly situated content creators

13

experience while having their speech chilled.

14

Even though these last two injunctive factors may merge

15

when the Government is the opposing party,” Nken v. Holder, 556

16

U.S. 418, 435 (2009), because Plaintiff Kohls has demonstrated

17

that he is likely to succeed on a facial challenge to AB 2839,

18

it follows that the public interest weighs in favor of a

19

preliminary injunction since “it is always in the public

20

interest to prevent the violation of a party’s constitutional

21

rights.”

22

2012) (internal quotations omitted); accord Sammartano v. First

23

Jud. Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002).

24

general matter, the Court recognizes the “significant public

25

interest in upholding free speech principles” where “the ongoing

26

enforcement of [a] potentially unconstitutional regulation[]

27

would infringe not only the free expression interests of

28

plaintiffs, but also the interests of other people subjected to

Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

18

As a

1

the same restrictions.”

Klein, 584 F.3d at 1208 (cleaned up).

2

D.

Severability

3

Defendants argue that AB 2839’s severability clause allows

4

the Court to salvage portions of the statute.

However, a

5

severability clause only saves portions of a statute that pass

6

constitutional muster and under California law, the Court can

7

only sever provisions if they are (1) “grammatically

8

functionally and volitionally separable,” (2) the “invalid parts

9

can be removed as a whole without affecting the wording or

10

coherence of what remains,” and (3) if the “remainder of the

11

statute is complete in itself.”

12

774 F.3d 566, 574 (9th Cir. 2014).

Vivid Ent., LLC v. Fielding,

13

As discussed above, critical portions of AB 2839 are

14

invalid because Cal. Elec. Code § 20012(b)(1)(A)–(D) penalizes

15

constitutionally protected speech.

16

finds that the only provision of AB 2839 that could survive

17

constitutional scrutiny or would “have been adopted by the

18

legislative body had the [body] foreseen the partial

19

invalidation of the statute,” Vivid Ent., LLC at 576, is the

20

portion of AB 2839 not raised explicitly by either party: the

21

audio only disclosure requirement codified at Cal. Elec. Code

22

§ 20012(b)(2)(B)(ii).

23

constitute compelled speech, but under the factors in Helzer, a

24

verbal disclosure at the outset and conclusion of a recording

25

combined with interspersed disclosures in two-minute intervals

26

is on its face reasonable and not unduly burdensome.

27

1207, 1214 (9th Cir. 2024).

28

In this instance, the Court

This audio only requirement may

95 F.4th

Nevertheless, the Court has preliminarily determined that
19

1

the rest of AB 2839 is still unconstitutional.

Contrary to

2

Defendants assertions, Plaintiff contends that he is impacted by

3

the other prohibitions in AB 2839 outside of the “candidate”

4

prong which are codified at Cal. Elec. Code § 20012(b)(1)(B)–

5

(D).

6

video “lampoon[ing] an elected official,” he is also impacted by

7

the “elected official” prong of AB 2839.

8

The only portion of AB 2839 Plaintiff might arguably not yet be

9

impacted by is § 20012(b)(1)(B) or (D), but even those

Plaintiff alleges that because he has already posted a new

See P. Reply at 10.

10

provisions are constitutionally suspect on their face because

11

they contain the same content-based language that restricts the

12

mere false depiction of elections officials or voting machines,

13

ballots, voting sites, or other property or equipment.

14

Plaintiff points out, “severance is inappropriate if the

15

remainder of the statute would still be unconstitutional,”

16

Tollis Inc. v. County of San Diego, 505 F.3d 935, 943 (9th Cir.

17

2007), and the Court finds that no other parts of AB 2839,

18

except for the audio only disclosure requirement, pass

19

constitutional muster.

20
21

As

IV. CONCLUSION
The Court acknowledges that the risks posed by artificial

22

intelligence and deepfakes are significant, especially as civic

23

engagement migrates online and disinformation proliferates on

24

social media.

25

the state statute at issue in this motion lightly, even on a

26

preliminary basis.

27

instead of a scalpel, serving as a blunt tool that hinders

28

humorous expression and unconstitutionally stifles the free and

Against this backdrop, the Court does not enjoin

However, most of AB 2839 acts as a hammer

20

1

unfettered exchange of ideas which is so vital to American

2

democratic debate.

3

Just as the Court is mindful that legislative leaders

4

enacted AB 2839 and that the State may have a legitimate

5

interest in protecting election integrity, it is equally mindful

6

that the First Amendment was designed to protect citizens

7

against prior restraints and encroachments of speech by State

8

governments themselves.

9

the Constitution to ever-advancing technology, the basic

“[W]hatever the challenges of applying

10

principles” of the First Amendment “do not vary” and Courts must

11

ensure that speech, especially political or electoral speech, is

12

not censored for its ideas, subject matter, or content.

13

v. Entertainment Merchants Assn., 564 U.S. 786, 790 (2011).

14
15

Brown

V. ORDER
For the reasons set forth above, the Court GRANTS

16

Plaintiff’s Motion for a Preliminary Injunction (ECF No. 6-1).

17

Defendants Rob Bonta and Shirley N. Weber and their agents,

18

employees, public servants, officers and persons acting in

19

concert with them are HEREBY ENJOINED from enforcing AB 2839

20

except for the audio only severed portion of the statute.

21

bond requirement under Federal Rule 65(c) is waived.

22

IT IS SO ORDERED.

23

Dated: October 2, 2024

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25
26
27
28
21

The