R Street Institute Letter to Maryland Governor Wes Moore in Opposition to MD SB 361, Artificial Intelligence and Synthetic Media in Campaigns

April 10th, 2025

The Honorable Westley Moore
Governor of Maryland
State House
100 State Circle
Annapolis, MD 21401

RE: R Street Institute’s Opposition to Maryland Senate Bill 361

Governor Moore:

My name is Chris McIsaac, and I am a Governance Fellow at the R Street Institute. I am writing today in opposition to Senate Bill 361, legislation that would prohibit the fraudulent use of a “deepfake” to influence voter decisions. The R Street Institute is a nonprofit, nonpartisan public policy research organization. Our mission is to engage in policy research and outreach to promote free markets and limited, effective government across a variety of policy areas, including the intersection of artificial intelligence (AI) and election policy.

Recent advances in artificial intelligence are impacting all aspects of modern life, including the way elections are administered and campaigns are run.^[1] These advances have raised fears that technology will be used to deceive voters at scale and erode trust in elections, though the actual impacts on the 2024 election were minimal.^[2] SB 361 attempts to mitigate these potential harms by criminalizing the fraudulent use of a deepfake to influence voter decisions. While well intentioned, the bill is problematic because it creates a concerning new content- and technology- based restriction on political speech that expands the government’s role in policing election related communications and imposes harsh criminal penalties for non-compliance.

Legislative attempts to regulate the use of AI-generated political deepfakes have accelerated in recent years, and today there are 22 states with laws in place.^[3] Nineteen of these states require a label while the other three—California, Minnesota and Texas—place an outright prohibition on certain uses of AI. Last year, a federal judge blocked California’s prohibition law as a free speech violation, and a similar lawsuit is pending in Minnesota.^[4] Despite attempts to narrowly tailor the application of the restriction in SB 361 to deepfakes disseminated with “fraudulent intent,” the bill exposes Maryland to a similar legal challenge on First Amendment grounds.

SB 361 also raises serious implementation concerns as it expands the government’s role in policing political speech based on a complex set of factors including the truthfulness of the communication, the intent of the person who disseminates it, and the technology used in its creation. Determining truthfulness and intent requires the government to make nuanced judgment calls on issues that are not always obvious, especially in the context of a political campaign. Meanwhile, a broad definition of deepfake that includes content generated by artificial intelligence or “other digital technology” casts a wide net for electronic communications that could potentially trigger a prosecution. Rather than enlisting state prosecutors and the judiciary to enforce these complex restrictions under the threat of fines and up to five years in prison, a simpler solution is to let politicians and their supporters respond to false claims and let the public decide what they believe.

Overall, the push toward protecting the public from exposure to election related deceptions is well meaning but banning certain types of political speech based on both the content and technology used is unnecessary and creates a burden on free speech. For these reasons, we respectfully request that you veto SB 361.

Thank you for your time,

Chris McIsaac
Fellow, Governance
R Street Institute
cmcisaac@rstreet.org

Cc: Jeremy Baker, Chief Legislative Officer, Office of Governor Westley Moore

      Myles Hicks, Deputy Legislative Officer, Office of Governor Westley Moore

      Eric Luedtke, Senior Policy Advisor, Office of Governor Westley Moore