State laws Regulating Election-Related Deep Fakes: Kohls v. Ellison
May 1, 2026
By: William & Mary Law Student Contributor
Across the country, concern about the malicious use of deep fake imagery has grown significantly in the last year. Rapid advancements in artificial intelligence have made deep fake images nearly indistinguishable from real images. Not only are deep fake images and videos now nearly identical to authentic images and videos, but deep fakes are now easy and inexpensive to create.
In response, states across the country have enacted laws regulating the use of election-related deep fakes. Concern about the use of deep fake technology to influence elections appears to exist across the political spectrum, as numerous state governments controlled by Democrats and Republicans have enacted laws over the last few years.
Many of these laws have been challenged in court on First Amendment grounds. One current ongoing case is a challenge of a Minnesota statute in the case Kohls v. Ellison. 166 F.4th 728, 730 (8th Cir. 2026).
In 2024, Minnesota amended a 2023 bipartisan law targeting the use of deep fake technology to influence elections. Codified as Minn. Stat. § 609.771 and titled “Use of deep fake technology to influence election,” the Minnesota statute holds that
“A person who disseminates a deep fake or enters into a contract or other agreement to disseminate a deep fake is guilty of a crime… if the person knows or acts with reckless disregard about whether the item being disseminated is a deep fake and dissemination:
(1) is made without the consent of the depicted individual;
(2) is made with the intent to injure a candidate or influence the result of an election; and
(3) takes place either:
(i) within 90 days before a political party nominating convention; or
(ii) after the start of the absentee voting period prior to a presidential nomination primary, or a regular or special state or local primary or general election.”
Minn. Stat. § 609.771.
The statute defines “deep fake” as material “that is so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct.” Id.
A person found in violation of the statute faces potential fines and jail time. In addition, the statute holds “that a state or local candidate who violates the law must forfeit any nomination or elected office, and is disqualified from any future appointment to office.” Kohls v. Ellison, 166 F.4th 728, 730 (8th Cir. 2026).
The statute also creates a “cause of action for injunctive or equitable relief… against any person who is reasonably believed to be about to violate or who is in the course of violating” the statute. The cause of action can be used by the state’s attorney general, county and city attorneys, the depicted individual, or “a candidate for nomination or election to a public office who is injured or likely to be injured by dissemination.” Minn. Stat. § 609.771.
In September 2024, Kohls, a political commentator, and Franson, a Minnesota state legislator, facially challenged the statute, arguing it violated their First Amendment rights. Kohls and Franson argued that the law does not exempt parody and triggers and violates strict scrutiny. In response, Minnesota argued that by definition the law exempts parody, stating that the law only applies to deceptive deepfakes that are so realistic that a reasonable person would believe it depicts conduct or speech of an individual that did not actually occur. Minnesota argues that it has a compelling state interest to regulate the use of deceptive deep fakes before elections to protect free and fair elections. On February 9, 2026, the Eighth Circuit affirmed the denial of a preliminary injunction by the District Court, noting that Franson waited at least sixteen months to seek an injunction. In affirming the denial of a preliminary injunction by the District Court, the Eighth Circuit also noted that Franson had voted for the law in 2023. The Eighth Circuit remanded the case to the District Court for a decision on the merits.
As we wait for a decision on the merits in Kohls v. Ellison, with the improvements in AI over the last year, the upcoming 2026 midterm election will be the first major election cycle in U.S. history where readily accessible, hyper-realistic deep fake technology could be used that is essentially indistinguishable from reality. The advances in deep fake technology raise serious questions about what states can and should do to protect the democratic process in a world where, in some ways, reality itself can be manipulated.