Political memes are one of the few things that make keeping up with this whole charade worth it. But now, legislators are fighting back. Recently, the Texas House passed a bill that would criminalize using altered media like memes without disclosure in political ads.
Earlier this year, former House Speaker Dade Phelan (R) introduced HB 366, which requires political ads to disclose when they use content that “did not occur in reality.” This altered media includes images, audio, video, and AI-generated content. Without a disclosure, the distributors could face up to a year in jail and a fine of up to $4,000.
The law would not apply to everybody. Instead, it focuses on politicians, including candidates or current officeholders, entities or individuals that spend over $100 on political advertising, and anyone who publishes or distributes such content for compensation. Additionally, it doesn’t apply to media that has only been superficially changed, like adjusting the brightness or contrast.
Phelan’s bill comes after he was the subject of targeted campaigns by the more conservative branches of his own party during his re-election run. The Club for Growth, a massive conservative PAC, sent out mailers with an edited picture of Phelan’s head on House Minority Leader Hakeem Jeffries’ body while hugging Rep. Nancy Pelosi. Currently, Texas has a law that prohibits using AI pictures within 30 days of an election. However, those mailers didn’t fall into that period of time.
“This is the beginning of a new era in ethics where the voters need to know what is real and what is not,” Phelan said on the House floor, per the Texas Tribune. “This AI technology gets better every single day. It gets more inexpensive every single day, and it’s going to become the norm.”
It may seem silly to require a disclosure for altered media, especially if it’s AI slop. However, you can’t trust everybody’s ability to judge content. Last year, researchers showed that scammers are successfully using AI images on Facebook for audience growth. According to the report, Facebook users “often suggested that they did not recognize the images were fake—congratulating, for example, an AI-generated child for an AI-generated painting.”
Per the Tribune, Phalen said, “This is nothing different than what we currently do with political advertisements. You have to put ‘political ad paid for by’ when you enter this political advertising arena. And all this does is tell you to add a disclosure that you are using altered media.”
All things considered, it’s not the worst bill to come out of Texas this year. However, it’s still not hard to see how it can go wrong. For example, advocates expressed concerns that the bill leaves too much open to interpretation. In a tweeted statement, the Foundation for Individual Rights and Expression wrote that the bill “shift[s] the power to judge the accuracy of political messaging from voters to the government.”
FIRE specifically honed in on the bill’s language of media that “did not occur in reality,” writing, “The content doesn’t have to be misleading – only different from what the government thinks really happened.” In addition, the organization expressed concerns over the $100 minimum as it could easily sweep up regular people who simply do something like pay to boost content on social media.
“It is quite a serious bill with First Amendment concerns,” Sam Hooper, counsel for the Institute of Justice, said in a video statement. “Political satire, parody, memes, all of these have always been a part of how Americans criticize those in power. You shouldn’t have to slap a disclaimer on it. You should be able to trust the recipients of information to judge by themselves what they want to accept, what they believe to be true.”
In addition, representatives voiced concerns over the bill giving power to the Texas Ethics Commission to determine what the disclosure would look like. Per KVUE, Steve Toth (R) said, “The TEC should not be an arbiter of truth in language, and we should stand against any time government wants to regulate speech.” The outlet also reported that Nate Schatzline (R) condemned the bill as “anti-American”, saying, “To throw someone in jail is to silence political speech. This is insanity that we would propose such a harsh penalty for simply expressing our displeasure of an elected official.”
Ultimately, HB 366 passed the state House with a 102-40 vote. Although it is heading to the Senate, it’s not clear if the bill will pass there.
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