Earlier this year, the leading online pornography site PornHub announced a ban on celebrity “deep fakes.” These are videos in which AI technology is used to place a celebrity likeness seamlessly over existing footage. The site stressed its commitment to the proposition that pornography must be consensual on the part of both makers and consumers, while deep fakes are tantamount to forced nonconsensual sex acts by the celebrities depicted. In a statement to Vice, PornHub’s position was unequivocal: “We do not tolerate any nonconsensual content on the site and we remove all said content as soon as we are made aware of it. Nonconsensual content directly violates our TOS and consists of content such as revenge porn, deep fakes or anything published without a person’s consent or permission.”
The reference to revenge porn is particularly interesting, since this has emerged recently as a hot topic in the law. Unlike deep fakes, to which the celebrity has given no consent whatever, the victim of revenge porn generally participated in the creation of the erotic content only to have it disseminated later on the internet to embarrassing (to say the least) effect, usually by an ex-lover. Several states have sought to curtail revenge porn by means of criminal statutes, only to face challenges on First Amendment grounds, including from the ACLU.
The Hollywood studios have raised similar arguments regarding deep fakes. The MPAA, the lobbying organization for the major studios, has come out in opposition to a proposed New York statute criminalizing the use of “digital replicas” for pornographic purposes. In a memo setting out its reasoning, the MPAA notes that the bill lacks protections for expression that is clearly within the ambit of the First Amendment such as news reporting, commentary and analysis. The memo also points out the notorious slipperiness of defining pornography at all. (Although not alluded to in the memo, no less a person than Justice Potter Stewart could do no better than to throw up his hands and declare in a famous quote, “I know it when I see it.”)
By enshrining the right to free speech in the Constitution, the Founding Fathers insured that the United States would have a uniquely freewheeling public culture. Those estimable gentlemen could not have conceived, and, however open-minded for their times, would likely not have approved the terms of the current debate over deep fakes and revenge porn, but the vigorous clash of principles can yield surprising results and remains one of the great strengths of our system.