Federal judge blocks Montana’s AI campaign ad law

A Montana law regulating the use of generative artificial intelligence in campaign ads has been dealt a blow by a federal judge on the basis of freedom of speech concerns.

U.S. District of Montana Judge Susan Watters has blocked Montana’s Commissioner of Political Practices and attorney general from policing the AI-generated ads of former Republican state legislator Dan Bartel and the Accountability in State Government PAC. Montana law prohibits the use of artificial intelligence tools to misrepresent a candidate’s position in campaign ads. 

The order, issued late Wednesday, greenlights general election advertising that Bartel and ASG PAC planned to use in legislative races this election. Bartel coordinates ASG’s advertising, which the committee feared being prosecuted for. Watters ruled that Bartel and ASG had legitimate concerns of enforcement, based on primary election complaints and actions by Political Practices Commissioner Chris Gallus.

“As plaintiffs argue, a credible threat of enforcement exists in the form of the multiple private complaints, the warning letter from Commissioner Gallus and the lack of government disavowal,” Watters ruled.

The court file includes yet-to-be-circulated mailers portraying Democratic legislator Mary Ann Dunwell, of Helena, as a country-western pickpocket, pulling the wallet from a cowboy’s pants. 

Specifically, Montana prohibits anyone from paying for or sponsoring the production, creation or distribution of a campaign ad that they know, or should have known, is a deepfake image or recording of a candidate or political party within 60 days of the start of voting in an election.

The law allows such communications if they include a clear disclosure stating that the content has been significantly edited by AI and falsely appears authentic or truthful.

Concerns about Bartel and ASG’s AI-generated ads surfaced this spring when the fellow Republicans in competitive primaries were targeted with ad images characterizing the candidates as pride-flag-waving advocates of “DEI,” or diversity, equity and inclusion policies promoting nondiscrimination as a government practice. One candidate, Jennifer Carlson, of Manhattan, filed a complaint with the Commissioner of Political Practices. 

In court filings, Commissioner Gallus testified that the mailers targeting Carlson and other lawmakers amounted to satire, a valid method of candidate critique exempt from the state’s AI law.

Bartel and ASG argued that their ads don’t fit the definition of “deepfakes,” the practice of using artificial intelligence to create realistic false images of real people. They specifically cited as an example of an actual deepfake the use of artificial intelligence in a 2024 robocall that convincingly sounded like then-President Joe Biden asking voters to sit out a primary election in Massachusetts.

Matt Monforton, an attorney representing Bartel and ASG, told Montana Free Press earlier in the week that the case brought by his clients is a straightforward defense of freedom of speech rights secured by the First Amendment of the U.S. Constitution.

Monforton also argued that the Montana law’s requirement that ads bear disclosure statements is prejudicial and meant to discredit the message of the ad, Monforton said.

“Absolutely, the whole point of the disclaimer requirement is to make sure that the juice isn’t worth the squeeze for a candidate who wants to use AI,” Monforton said.