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78 Md. L. Rev. 892 (2018-2019)
Sex, Lies, and Videotape: Deep Fakes and Free Speech Delusions

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             SEX, LIES, AND VIDEOTAPE: DEEP FAKES
                    AND FREE SPEECH DELUSIONS

              MARY ANNE FRANKS* & ARI EZRA WALDMAN**

      If you are neutral in situations of injustice, you have chosen the
      side of the oppressor. --Desmond Tutu1


      The longstanding position of civil libertarians that harmful speech
should generally be tolerated instead of regulated2 is based on three interre-
lated claims about free speech. One is that an unfettered marketplace of
ideas ultimately leads to the discovery of truth.3 The second, closely related
to the first, is that harmful speech is always best addressed through counter-
speech rather than regulation.4 The third is that even well-intentioned and
modest regulations of speech will ultimately be used to silence minority or
dissident voices.5 Whatever merit these claims may have had in the past,
they cannot be sustained in the digital age. Unbridled, unlimited free speech
rights, especially in an era of technologically mediated expression, have led
to the disintegration of truth, the reign of unanswerable speech, and the si-
lencing and self-censorship of women, queer people, persons of color, and
other racial and ethnic minorities.6


© 2019 Mary Anne Franks & Ari Ezra Waldman.
    * Professor of Law, University of Miami School of Law; President and Legislative and Tech
Policy Director, Cyber Civil Rights Initiative; D.Phil., Oxford University; J.D. Harvard Law School.
    ** Professor of Law and Founding Director, Innovation Center for Law and Technology, New
York Law School; Fellow, Information Society Project, Yale Law School. Ph.D., Columbia Uni-
versity; J.D., Harvard Law School. The authors would like to thank Danielle Keats Citron for her
leadership and organizing a symposium on deep fakes. Thanks also to the symposium participants,
including Bobby Chesney, Stacey Dogan, Woodrow Hartzog, Quinta Jurecic, Thomas Kadri, Kate
Klonick, Jessica Silbey, Olivier Sylvain, and Benjamin Wittes. The authors share credit and re-
sponsibility for this essay equally. Special thanks to the student editors of the Maryland Law Re-
view.
     1. Gary Younge, The Secrets of a Peacemaker, GUARDIAN      (May 22, 2009),
https://www.theguardian.com/books/2009/may/23/interview-desmond-tutu.
    2. See generally ANTHONY LEWIS, FREEDOM FOR THE THOUGHT WE HATE (2007); NADINE
STROSSEN, HATE: WHY WE SHOULD RESIST IT WITH FREE SPEECH, NOT CENSORSHIP (2018).
    3. See generally Thomas W. Joo, The Worst Test of Truth: The Marketplace of Ideas as
Faulty Metaphor, 89 TUL. L. REV. 383 (2014) (critiquing this claim).
    4. See STROSSEN, supra note 2, at 130.
    5. Id. at 81 (arguing that equality for marginalized groups depends on free speech); Mary
Ellen Gale & Nadine Strossen, The RealACLU, 2 YALE J.L. & FEMINISM 161, 180 (1989) (noting
that dissident voices, on the left and right, are the ones targeted by censorship).
    6. See, e.g., DANIELLE KEATS CITRON, HATE CRIMES IN CYBERSPACE (2014); Ari Ezra
Waldman, Law, Privacy, and Online Dating: Revenge Porn in Gay Online Communities, 44 L.

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