Texas House Passes Bill Criminalizing Undisclosed Altered Media in Political Ads
The Texas House of Representatives has passed House Bill 366 (HB 366), a controversial measure that seeks to regulate the use of altered media in political advertising. The bill, introduced by former House Speaker Dade Phelan, aims to combat the spread of misinformation and deceptive content by requiring disclosures when altered images, audio, video, or AI-generated content are used in political ads. Supporters argue the bill is a necessary step to ensure voters are informed about the authenticity of the information they consume, while critics raise concerns about potential infringements on free speech and the bill’s broad scope.
HB 366 mandates that political advertisements disclose when they utilize content that "did not occur in reality." This includes a wide range of altered media, from manipulated images and audio recordings to entirely AI-generated content. The bill specifically targets politicians, including candidates and current officeholders, as well as entities or individuals who spend over $100 on political advertising. Additionally, anyone who publishes or distributes such content for compensation would also be subject to the disclosure requirements. Failure to comply with the law could result in severe penalties, including up to a year in jail and a fine of up to $4,000.
The bill does include some exceptions. It does not apply to media that has been only superficially changed, such as adjusting the brightness or contrast. The legislation is aimed at addressing more significant alterations that could potentially mislead voters.
Phelan’s motivation for introducing HB 366 stemmed, in part, from his own experience as a target of misleading political attacks during his re-election campaign. A conservative PAC, the Club for Growth, circulated mailers featuring an altered image of Phelan’s head superimposed on the body of House Minority Leader Hakeem Jeffries while he was hugging Rep. Nancy Pelosi. While existing Texas law prohibits the use of AI-generated images within 30 days of an election, the mailers in question fell outside of that timeframe, highlighting a perceived gap in the state’s election laws.
During a debate on the House floor, Phelan argued that the bill represented "the beginning of a new era in ethics" and emphasized the need for voters to distinguish between what is real and what is not. He pointed to the increasing sophistication and affordability of AI technology, suggesting that the use of altered media would likely become more prevalent in political campaigns.
Phelan drew a parallel between the proposed disclosure requirement and existing regulations for political advertisements, which already require disclosures of who paid for the ad. He argued that adding a disclosure regarding the use of altered media was a logical extension of these existing regulations.
Supporters of the bill cite instances where AI-generated images have been successfully used to deceive individuals online. They reference a study that found scammers using AI-generated images on Facebook to grow their audience, with many users failing to recognize the images as fake. In one example, Facebook users congratulated an AI-generated child for an AI-generated painting, demonstrating a lack of awareness about the artificial nature of the content.
Despite the arguments in favor of HB 366, the bill has faced significant criticism from various groups, including free speech advocates and some legislators. Concerns have been raised about the bill’s potential impact on political satire, parody, and memes, which are often used to criticize those in power. Critics argue that the disclosure requirement could stifle political expression and that individuals should be able to judge the authenticity of information for themselves.
One of the primary concerns is the bill’s broad language, particularly the phrase "did not occur in reality." Critics argue that this language is too vague and could be interpreted to include a wide range of content, even if it is not explicitly misleading. The Foundation for Individual Rights and Expression (FIRE) expressed concern that the bill would shift the power to judge the accuracy of political messaging from voters to the government. FIRE also raised concerns about the $100 spending threshold, arguing that it could potentially sweep up ordinary individuals who simply pay to boost content on social media.
Sam Hooper, counsel for the Institute of Justice, argued that political satire, parody, and memes have historically been an important part of American political discourse and that requiring disclaimers on such content could stifle free expression. He believes that individuals should be trusted to evaluate information and decide what they believe to be true.
Some legislators have also voiced concerns about the bill’s delegation of authority to the Texas Ethics Commission (TEC) to determine the specific language of the disclosure. Rep. Steve Toth expressed his opposition to the TEC serving as an "arbiter of truth in language" and cautioned against government regulation of speech. Rep. Nate Schatzline condemned the bill as "anti-American," arguing that the threat of jail time for expressing displeasure with an elected official was an unacceptable infringement on political speech.
Despite these concerns, HB 366 passed the Texas House with a 102-40 vote and is now heading to the Senate for consideration. It remains uncertain whether the bill will ultimately be approved by the Senate and become law. The debate over HB 366 highlights the complex challenges of regulating online content and the delicate balance between combating misinformation and protecting freedom of speech. The bill’s fate in the Senate will likely depend on further debate and potential amendments to address the concerns raised by critics. The outcome will have significant implications for the future of political advertising and the ability of individuals to express themselves freely in the digital age within the state of Texas.
