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It also allows the spread of enjoyable pastimes and a whole host of other non-political speech that some may find objectionable. There are a whole host of interesting pre-Code Hollywood films for instance, that aren't pornographic, but still had important or humorous messages.

Sure, we can expand the values of free speech as far as you want. Making and distributing porn of somebody using their likeness without their consent is unethical behavior that is not some pillar of any social good derived from the broad principle of free speech.

If you want to fight for free speech there's plenty of other actually useful battles.

I'm serious. Just once, I'd love a free speech absolutist in these situations to talk about all the work they are doing to prevent retaliatory arrest or expand the speech rights of students or try to get Thomas (who wants to overturn Tinker) or Alito (who voted by himself in Snyder v Phelps) kicked off the bench.

>Making and distributing porn of somebody using their likeness without their consent is unethical behavior

I suspect not everyone agrees with that. Are you willing to trade away some of the things you think should be permitted but they don't for the ban?

First we should see whether it's possible to outlaw non-consensual distribution of deepfake porn on it's own. If that's possible then we don't have to consider the alternative of a more general ban.

Why is your opinion of what should be allowed more important than theirs? And do you really want to make everything unethical illegal?

> Why is your opinion of what should be allowed more important than theirs?

Least harm.

> And do you really want to make everything unethical illegal?

By definition, YES! Or at least actionable civil torts.

https://www.dictionary.com/browse/unethical

: lacking moral principles; unwilling to adhere to proper rules of conduct.

: not in accord with the standards of a profession

Have you ever eaten pork or beef or perhaps chicken parmesann or even an omelette? There are many who would say that any one of those acts shows a lack of moral principles. You want all of these things to be illegal?

It's arguable, but at this point I'm just going to state that you are going out of your way for a "gotcha" on a reduction to the absurd.

When you mentioned "ethics" as opposed to "morality" I naively assumed interhuman behaviors such as business ethics and the like.

So yes, I believe that anything that can harm a fellow human (and many things that can harm other life) should be civilly actionable. We can argue about some of the edge cases, but non-consensual deepfake porn is not one of those edge cases to me.

What about lookalikes? Should we make it illegal for a porn star to say, dress up as a famous actor or actress? That has been going on for decades.

What about drag shows where they impersonate a famous figure and do a sexually suggestive performance? How much protection should the “likeness” of ultra-wealthy superstars get?

>Should we make it illegal for a porn star to say, dress up as a famous actor or actress?

And what about unflattering but non-pornographic impersonation?

Famous people have fewer rights against parody than do non-famous people. I'm not in favor of making it illegal, per se, but depending on the limits of the law might be in favor or requiring licensing (i.e. legal permission) to do so for all but parody (which would necessarily take some effort to be obvious as parody).

This article has a good discussion on the lookalike topic of which I'm excerpting some: https://www.publicethics.org/post/the-ethics-of-deepfake-por...

: Suppose I have an indistinguishable look-alike named ‘Danny’ in the pornography business. Danny’s videos are not deepfakes and do not depict me, but people who watch Danny’s videos mistakenly think they depict me. Consequently, the videos affect me in the ways just mentioned.

: I suspect that the most fundamental morally relevant difference between distributing deepfake pornography of me and distributing Danny’s pornography is that the deepfake pornography depicts me while Danny’s pornography, despite appearances, does not.

: Now, if you use that picture to make a deepfake, then that deepfake depicts me, because it’s based on an image that depicts me.

: Just as it would be wrong for someone to nonconsensually distribute a stick figure illustration of me having sex to students in my classroom, so it’s wrong for someone to nonconsensually distribute deepfake pornography of me on the internet.

There must be more behind this social good metric that you keep bringing up, care to cite where that comes into play?

What merits social good, and who decides it? For example, if I go to a train station and tell people horses have purple hair, is that not free speech? I wouldn't consider that ridiculous statement a social good, it really serves no value and doesn't better society. Am I breaking a law or ethical standard if I do this?

> Making and distributing porn of somebody using their likeness without their consent is unethical behavior

How do you propose we define likeness here? Sure if its shared and claims to be of a named celebrity that must meet the bar, but how much alike the original person must it look like to become unethical?

If a person finds a celebrity attractive and bases a fictitious character on them, is that a problem? What if the haircut is the same, or the eyes and nose are similar? If it goes to court, how personal can the defendant get to show discrepancies between the fake porn and the actual person?

Don't get me wrong I really wish people wouldn't use tech for this kind of stupid shit. I just don't think we will ever be able to draw clear and predictable lines around what does and does not break the law.

What you're describing is just how law works. It's all written in natural language terms that are inherently ambiguous. It's not computer code. Courts decide the boundary cases. Laws around "likeness," in particular are nothing new: https://en.wikipedia.org/wiki/Personality_rights

And you don't have any problem with laws being ambiguous enough that you can't tell beforehand whether you're breaking the law?

In my experience with jury cases the jury is given as little room to interpret law as possible. In this example prosecutors would say "here is what 'likeness' means" and that would be that. Jurors would be expected and instructed to use that definition when determining if the defendant broke the law.

To say that its expected and even a good thing for our elected officials to pass ambiguous laws and our unelected courts to determine what that should mean with little to no input from the public is very confusing IMO. The government is there to work for us, not to define rules and enforce punishment in ways that are completely outside our democratic process of elections and representation.

> And you don't have any problem with laws being ambiguous enough that you can't tell beforehand whether you're breaking the law?

As long as you can tell beforehand whether you're getting close to breaking the law this is fine. The closer you get to possibly breaking the law the more exculpatory evidence you should be collecting to present to a court.

> To say that its expected and even a good thing for our elected officials to pass ambiguous laws and our unelected courts to determine what that should mean with little to no input from the public is very confusing IMO. The government is there to work for us, not to define rules and enforce punishment in ways that are completely outside our democratic process of elections and representation.

Sure. So what's your alternative? No laws at all? Only laws that can be precisely defined in a completely non-ambiguous manner (good luck with that [1])? I favor making sure that people know about jury nullification prior to becoming jurors. And also favor elected courts (which exist in many jurisdictions).

[1] - I argued elsewhere that even the Constitutional requirement that the President by 35 years old or older is highly ambiguous (as per how the length of a year is defined, leap years, sidereal years, age at running for office, election to office, or assumption of office, etcetera), but hasn't been adjudicated because we haven't had any edge cases. Genuinely non-ambiguous laws don't exist, because every term can be argued over.

I agree with you in theory, but at the end of it all -- which is to say, this looks like this could be a question of "what are we willing to spend resources to enforce?"

It's really hard for me to see the utility in going after THIS vs. letting people say garbage like "If I see a black man flying a plane I'm going to worry." with near complete impunity.

Edit: And I don't think we should necessarily spend resources to go after the latter either, I'm just saying, as a black man, if I had to pick...yeah.

It might be informative talking to your black sisters.

Weird of you to assume I don't? What precisely are you suggesting here?

I meant "sisters" in the metaphorical sense.

I'm suggesting asking black women which one they'd prioritize. Deepfake porn impacts women a whole lot more than it impacts men. Just as racist assumptions of violence or danger impacts men a whole lot more than it impacts women.

Edit to add: If something prevents or inhibits someone from engaging in the public sphere to the extent of cutting back on their employment and employment opportunities, or their consumption and consumption opportunities, for instance, then there is also a cost in not policing that something.

And yet the law will be written that refers to obscene materials, and then later someone will find a graphic criticism of someone else's religion or favourite politician to be obscene. It will happen, because it always happens. It doesn't (only) matter what the intent of the law is, any more than it matters what the intent of strcpy is. It (also) matters what purposes the law can be twisted to.

al_borland (https://news.ycombinator.com/item?id=39167506 ) posted this link earlier. It looks like the laws are being appropriately tailored not to "obscene" materials but toward "intimate" materials (where "intimate" supposes a right of privacy, regardless of whether fake or not).

https://arstechnica.com/tech-policy/2024/01/sharing-deepfake...

: the “Preventing Deepfakes of Intimate Images Act,” which seeks to "prohibit the non-consensual disclosure of digitally altered intimate images." Under the proposed law, anyone sharing deepfake pornography without an individual's consent risks damages that could go as high as $150,000 and imprisonment of up to 10 years if sharing the images facilitates violence or impacts the proceedings of a government agency.

"Obscene" versus "intimate" both fall into the same trap of requiring more clear definition.

In the first case one has to make a judgement call on whether they personally perceive something as obscene, and whether that means the other party was at fault for creating it. In the case of intimate, you have to define the word clearly and draw a line between what would and would not be considered intimate.

For example, if a fake porn image was made to include a scene of the act happening in a large gathering or public place, does that dodge the word "intimate"? And can the viewer of the image decide whether it is intimate, or would that distinction depend on the feelings of the image's subject at the time it was taken? If the latter, how can that exist when the image was entirely generated and had no living subjects to question?

They helpfully define the term in the text of the proposed law.

https://www.congress.gov/bill/118th-congress/house-bill/3106...

“(a) Definitions.—In this section:

“(1) CONSENT.—The term ‘consent’ has the meaning given such term in section 1309.

“(2) DEPICTED INDIVIDUAL.—The term ‘depicted individual’ means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction.

“(3) DIGITAL DEPICTION.—The term ‘digital depiction’ means a realistic visual depiction, as that term is defined in section 2256(5) of title 18, United States Code, of an individual that has been created or altered using digital manipulation.

“(4) DISCLOSE.—The term ‘disclose’ has the meaning given such term in section 1309.

“(5) INTIMATE DIGITAL DEPICTION.—The term ‘intimate digital depiction’ means a digital depiction of an individual that has been created or altered using digital manipulation and that depicts—

“(A) the uncovered genitals, pubic area, anus, or postpubescent female nipple of an identifiable individual;

“(B) the display or transfer of bodily sexual fluids—

“(i) onto any part of the body of an identifiable individual; or

“(ii) from the body of an identifiable individual; or

“(C) an identifiable individual engaging in sexually explicit conduct.

“(6) SEXUALLY EXPLICIT CONDUCT.—The term ‘sexually explicit conduct’ has the meaning given the term in subparagraphs (A) and (B) of section 2256(2) of title 18, United States Code.

> (2) DEPICTED INDIVIDUAL.—The term ‘depicted individual’ means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction

"And who is identifiable" is doing some heavy lifting here and could be legally ambiguous. If I see someone rob a convenience store and believed the person to look like Al Pacino, does that make the person identifiable? What if I actually thought it was him, not just that it looked like him?

In the case of fake porn, the creator can't know if one viewing it will think the person was modeled after Taylor Swift or if their intent was to actually create porn that would be identified by viewers as Swift.

Is this morally and ethically a problem? Absolutely, in my opinion. But can this be codified into law that is clear enough to make sure you don't break the law? Absolutely not, as long as the law depends on whether a viewer believes the fake porn looks like Swift or is Swift.

A person can't be reasonably expected to stay on the right side of a law that is defined by how someone will judge the creation later. Obviously its entirely different if the creator attempts to pass it off as the original person, in this case if someone created or distributed fake porn and claimed it actually was Swift.

> "And who is identifiable" is doing some heavy lifting here and could be legally ambiguous.

Sure, that's what a jury and/or judge is for. The defendant has a lot of potential defenses against a civil claim. The criminal portion of the law is tighter:

: “(a) Offense.—Whoever, in or affecting interstate or foreign commerce, discloses or threatens to disclose an intimate digital depiction—

:: “(1) with the intent to harass, annoy, threaten, alarm, or cause substantial harm to the finances or reputation of the depicted individual; or

:: “(2) with actual knowledge that, or reckless disregard for whether, such disclosure or threatened disclosure will cause physical, emotional, reputational, or economic harm to the depicted individual,

The legal definition of "reckless": https://www.law.cornell.edu/wex/reckless_disregard

: reckless action is distinguished from negligent action in that the actor consciously disregards a substantial and unjustified risk, as opposed to merely being unreasonable. For example, in State v. Olson, a 1990 South Dakota Supreme Court decision, the court did not find a tractor driver who turned left at 5-15 mph and hit another car reckless because the prosecution could not prove that he was aware that there was an oncoming car.

Based on how today's courts operate, juries aren't offered the opportunity to interpret law. Lawyers will present a specific interpretation of laws they deem relevant to the case, they will provide facts and evidence of the charge, and ask juries to decide based solely on that.

Ultimately it is left to judges to interpret law. Meaning that if laws are passed with ambiguous definitions unelected judges get to decide how they think the blanks should be filled in. Our elected officials can then, if they choose, pass laws with the intent of leaving them ambiguous to allow unelected judges to effectively write laws completely unbeholden to the very voters that they are meant to serve.

For this law juries don't need to interpret the law, merely deciding whether the clauses of the law have been met or not is enough. Saying that they don't think the plaintiff or prosecution met the burden of proof is fine.

In the US jury nullification is also a right. If the jury thinks that the law is too draconian for the facts of the case they can vote to acquit.

Your initial definition doesn't mention social good, though you follow it up with an assumption that social good is some kind of check on where free speech ends. Where does this come from? I know it isn't in the constitution, but is there some legal precedent set that more clearly defines this line?

> This isn't a backdoor to attack your constitutional rights. Not even close.

I'd be really curious to hear more here. My specific question and proposed backdoor was specifically in response to the idea that free speech may somehow be limited based on a measure of how easily current technology allows said speech to be distributed. What did I miss there and how is it not a backdoor?

We don’t measure Freedom of Speech by some test of how much Social Good is created by various types of speech.

These rights were enumerated in a time when people distributed pamphlets that led to a bloody revolutionary war. War is a hell of a lot worse for the social fabric than “some fake nudes got distributed on the Internet”.

The founders passed the Alien and Sedition Acts and various other laws that we'd now consider extreme limitations on political speech. Whatever free speech means today, it isn't derived from the core beliefs of the founders.