Take It Down Act Signed into Law – A First Amendment Threat?

The road to hell is paved with good intentions.

President Donald Trump signed the Take It Down Act on Monday (May 19), promising to punish those who exploit children online. Melania introduced him at the Rose Garden signing, as the first lady had also adopted this bill as her own project. The audience included innumerable members of Congress as the measure passed through both houses with only two nays. The bipartisan celebration cautions others who see the law criminalizing speech and violating the First Amendment.

Melania’s remarks at the event’s outset were brief and touted the protection of children online. She said they “can feel better protected from their image or identity being abused through non-consensual intimate imagery or NCII.” Hearing Melania speak more than a few words makes one realize just how much other first ladies have involved themselves in public affairs. Mrs. Trump’s public efforts have been mercifully spare, as they should be. Would that other presidential spouses follow her lead.

The Good

The law applies criminal penalties to those who post “intimate visual depictions” of others without their consent. This covers what is often called revenge porn. For example, a former lover posts photos or videos taken with permission but not with approval to be shared on publicly available websites. Even if a woman produced the image herself for a boyfriend, for instance, this law criminalizes the publication of that image far and wide. Also included, and more damaging, are photos of minors that may be shared widely and remain online for eternity.

The Bad

There are quite a few bad aspects to the law, but prohibiting similar postings and hosting artificial intelligence-generated NCII is much more troublesome. If you didn’t know, the internet is chock-full of sexually explicit imagery generated by AI. Whether it be an explicit scene of an Alexandria Ocasio-Cortez dupe engaged in coitus, a Michelle Obama picture doctored as “Big Mike” complete with phallus, or a Donald Trump depicted as having tiny or no genitalia, these abound. The producers and those who run sites that host them may be put in federal prison for years.

The Ugly – Take It Down Act

TAKE IT DOWN is an acronym for Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act. Perhaps the worst part of the new law is the provision requiring sites to remove flagged photos and videos within 48 hours. As Jason Kelley with the Electronic Frontier Foundation wrote:

“Services will rely on automated filters, which are infamously blunt tools. They frequently flag legal content, from fair-use commentary to news reporting. The law’s tight time frame requires that apps and websites remove speech within 48 hours, rarely enough time to verify whether the speech is actually illegal. As a result, online service providers, particularly smaller ones, will likely choose to avoid the onerous legal risk by simply depublishing the speech rather than even attempting to verify it.”

Another failure point is that there is no provision to punish those who use the law to censor. False claims designed to prevent material legally allowed under the law will likely be numerous, with no accountability for the malignant actors.

The bill was introduced by Sen. Ted Cruz (R-TX) and sailed through the Senate unanimously. Only two Republican congressmen voted no when the legislation came up in the House: Eric Burlison of Missouri and Thomas Massie of Kentucky. Burlison bills himself as a “constitutional conservative” and a backer of Trump’s agenda. Massie has made a name for himself as the most libertarian of representatives, valuing his fidelity to principle over politics. While Massie has an American Conservative Union score of 96%, Trump has threatened to back primary challengers to his re-election due to insufficient fealty to his budget proposals and votes declining to fund Israel’s wars.

Massie wrote in a Facebook post:

“Last night we voted on the ‘TAKE IT DOWN Act,’ a bill that would impose federal criminal and civil penalties for publishing unauthorized intimate pictures generated with AI.

“I voted NO because I feel this is a slippery slope, ripe for abuse, with unintended consequences.”

Will the new legislation survive court challenges to come? It is unlikely. The rules about images of minors are the most likely to remain. However, suppose the US Constitution protected a painter in 1982 who created an unflattering naked image of President Reagan. How can it not protect a digital artist who does the same with President Trump using a computer? Challenges will surely come with the first prosecution, if not before.