The Babylon Bee on Wednesday filed a legal challenge against a new Hawaii law that criminalizes political satire, accusing the state of violating citizens’ First Amendment rights.
The satirical outlet filed its challenge along with Dawn O’Brien, a Honolulu voter who runs Instagram and Facebook accounts with thousands of followers where she posts political memes criticizing Democrats. The plaintiffs are accusing Hawaii of using “vague and overbroad terms” that allow state officials “unbridled enforcement” discretion to crack down on things like political memes online.
Last summer, Hawaii passed a law that threatens jail time, fines, lawsuits, damages, and a 10-year disqualification from holding public office for posting certain political satire images online deemed “materially deceptive.”
The Babylon Bee and O’Brien are demanding that the courts block enforcement of the law and declare it unconstitutional.
“We’re used to getting pulled over by the joke police, but comedy isn’t a crime,” Seth Dillon, owner and CEO of The Babylon Bee, told The Daily Wire. “The First Amendment protects our right to tell jokes, whether it’s election season or not. We’ll never stop fighting to defend that freedom.”
The law bans “materially deceptive media in reckless disregard of the risk of harming the reputation or electoral prospects of a candidate in an election or changing the voting behavior of voters in an election,” a vague description, according to the legal challenge.
“Materially deceptive media” is defined as anything that “would cause a reasonable viewer or listener to believe that the depicted individual engaged in the speech or conduct depicted,” another vague description, the plaintiffs argue.
The law requires satirical content to include a “disclaimer” informing people that the content has been “manipulated” and depicts things that “did not occur.”
The legal challenge argues that adding a disclaimer forces The Babylon Bee and O’Brien, the Honolulu voter, to “incorporate Hawaii’s desired messages” into their content and robs their content of its “rhetorical force.”
“Because of their effectiveness and appeal, satire and parody have been used throughout American history to express matters of current interest — especially matters of politics and politicians,” the legal filing reads.
“That’s censorship plain and simple,” Alliance Defending Freedom legal counsel Mathew Hoffmann, who is representing the plaintiffs, told The Daily Wire.
“The bottom line is that we as the people exist in a self-governing society and we shouldn’t trust the government to set the terms for appropriate political debates,” Hoffmann said.
The law mentions “deepfakes” made by artificial intelligence, but Hoffmann cautioned that the law would apply “much more broadly.”
“What the law says is, digital content that basically depicts something that didn’t happen and that just risks harming someone’s reputation or electoral prospects, whatever that means,” he said. “So it wouldn’t just be deepfakes as colloquially understood. It’s really any digital content, any sort of images that may have been altered or Photoshopped, like what the Babylon Bee posts routinely online would be considered under this law to be materially deceptive.”
Hoffmann noted that political cartoons have long been protected in the United States, and that today’s memes are the “modern day” version of those cartoons. In addition, he said that the law will likely have a chilling effect on Hawaiians who may avoid posting “even questionable” satirical content out of fear it will be prosecuted.
“This law is of immense concern to all people in Hawaii or even entities like the Babylon Bee who post articles and images and funny memes that are viewable in Hawaii because they can be subject to criminal penalties simply for exercising their First Amendment rights,” Hoffmann said.