Free Speech in the Digital Age: Deepfakes and the Marketplace of Ideas

The threat of deepfakes is well-documented in the existing literature. Deepfake technology has emerged as a powerful tool with which vulnerable individuals could easily become targets of novel forms of exploitation and sabotage. Additionally, deepfakes’ unique capacity to distort people’s sense of reality exacerbates truth decay. The growing influence of social media and our deep-rooted cognitive biases further escalate the harms of deepfakes. Despite these apparent concerns, scholars have noted that the regulation of deepfakes confronts a constitutional challenge in the American context, stemming from Supreme Court cases such as New York Times v. Sullivan and U.S. v. Alvarez. In both cases, the Court emphasized the importance of protecting false speech on the grounds that it constitutes an integral part of the “marketplace of ideas.” This paper aims to show how the broad range of harms posed by deepfakes in the digital age calls for a departure from employing the Times and Alvarez approaches to assessing the constitutionality of deepfakes.