The Cyberlaw Clinic recently filed an amicus brief before the Eastern District of California in Kohls v. Bonta (2:24-cv-02527). The Clinic represented the Electronic Privacy Information Center (EPIC). The brief supports defendant Rob A. Bonta in his capacity as Attorney General of the state of California, who is defending California Assembly Bill 2839. AB 2839 prohibits the dissemination of deceptive and digitally altered media intended to influence an election for the 120 days before and 60 days after that election occurs. The brief highlights the interests protected by AB 2839, discusses how remedies like counter speech are insufficient, and proposes guidance on severability.
This case was brought by Christopher Kohls, a political commentator who runs a YouTube channel under the name “Mr. Reagan.” Kohls’ channel includes various political videos, including a video labeled “Kamala Harris Ad PARODY” that used generative AI to replicate the then-candidate’s appearance and voice. Kohls brought a facial challenge against AB 2839, arguing that it restricted speech that was protected by the First Amendment, including the videos that Kohls himself posts. On October 2, 2024, Judge John Mendez granted Kohls’s motion for preliminary injunction, enjoining the enforcement of AB 2839.
On March 7, 2025, the parties filed cross-motions for summary judgment. EPIC retained the Cyberlaw Clinic to write an amicus brief that would contribute to the court’s analysis of AB 2839 and keep the door open for future attempts to legislate false, intentional, and harmful election communications. The brief urges the court to perform a rigorous facial challenge analysis under the standard articulated by the Supreme Court in Moody v. NetChoice. Amicus argues that the court’s analysis of each relevant application and part of the statute should be thorough and precise—not only to determine its constitutionality, but also to provide guidance for future legislatures.
The brief also identifies two areas where the court can improve on the brief analysis in the order granting a preliminary injunction: First, the court could conduct an in-depth analysis of the similarities between AB 2839 and other laws that limit false, intentional, and harmful speech, as described in United States v. Alvarez. Many forms of false speech, including impersonation of government officials, misappropriation of likeness, and perjury, receive little or no protection under the First Amendment; many election deepfakes are likely to fall into these or similar categories. Second, the court could revisit its reliance on the judicial preference for counter speech. The idea that when both true and false speech exist, true speech will prevail is well-established in First Amendment law, but it is not absolute. For the last century, courts have recognized that counter speech is not sufficient to remedy the harms of falsehoods in all situations. In the age of social media, the difficulty of verifying true information, the speed at which false information can spread, and the formation of “filter bubbles” make corrective speech less effective. Amicus urges the court to consider these two points when deciding the cross-motions for summary judgment.
The brief was drafted by Cyberlaw Clinic students during the Winter and Spring 2025 terms, under the supervision of Clinical Instructor Mason Kortz. The Clinic looks forward to the court’s decision in this case.