Abstract
The rapid evolution of deepfakes and synthetic media presents unique and pressing challenges to the scope and resilience of First Amendment protections. While these technologies can be used creatively or comedically, they are increasingly weaponized in ways that can cause substantial harm: from non-consensual pornography and fraud to manipulated political content and reputational sabotage. As the production of synthetic media becomes more accessible and convincing, courts and lawmakers are being called upon to resolve the tension between free expression and individual dignity, autonomy, and privacy. This Article examines whether existing exceptions to First Amendment free speech—such as obscenity, defamation and intentional infliction of emotional distress, copyright, and the right to publicity—are sufficient to support broad legislation regulating synthetic media. It concludes that they are not, primarily due to the narrowness of these doctrines and defenses such as parody, satire, and fair use. Instead, this Article argues for the expansion of the right to privacy as a compelling government interest capable of justifying narrowly tailored restrictions on synthetic media. Drawing from U.S. tort law, constitutional privacy guarantees, and comparative constitutional frameworks, the Article demonstrates how privacy—while underrecognized in American constitutional jurisprudence—has historical, moral, and policy-based foundations robust enough to support such legislation. This Article also revisits the tort of false light, which has long been recognized in American privacy law, as a historically grounded and constitutionally viable framework for addressing the emotional and reputational harms caused by deepfakes. Further, this Article proposes a three-tiered model for a federal legislative response. Tier One criminalizes the creation and dissemination of non-consensual synthetic pornography. Tier Two enhances penalties where synthetic media is used to facilitate or amplify criminal conduct such as harassment, fraud, or extortion. Tier Three avoids criminalization for deepfakes generally but allows for takedown requirements and civil remedies, preserving space for satire and artistic expression.Ultimately, this Article calls for a recalibration of free speech doctrine in the age of synthetic media. While safeguarding expression remains a bedrock principle of democratic society, unchecked deepfake proliferation risks undermining truth, consent, and the autonomy of the individual. The law must evolve to protect citizens from being co-opted by machines—and others—into saying or doing things they never said or did, without silencing legitimate expression in the process.
First Page
49
Recommended Citation
Jacob R. Bourgault,
Free Speech And Synthetic Lies: Deepfakes, Synthetic Media, and the First Amendment,
3
Student J. Info. Priv. L.
49
(2025).
Available at:
https://digitalcommons.mainelaw.maine.edu/sjipl/vol3/iss1/5
