AI – defined as technology that enables computers and machines to simulate human learning, comprehension, problem solving, decision making, creativity, and autonomy – is becoming increasingly integrated into our everyday lives.[1] In early September, Apple unveiled its first iPhone featuring AI technology. Google offers to answer questions in quick summaries with Generative AI.  Even LEXIS gives users the option to use AI to answer legal questions and summarize case law. AI’s usefulness stems from its ability to learn from its mistakes – the more it's used, the more advanced it becomes. This self-improving capability makes AI one of the most advantageous and simultaneously dangerous technological innovations in popular use today. For example, a subsect of AI called “deep fakes” can create images, audio, and video hoaxes so convincing, the untrained eye cannot tell what’s real from what’s fake.[2]

On the September 5th episode of Conduct Detrimental, Dan and Mike touched on two recent instances of deep fake technology affecting the sports world. A picture posted on Reddit on September 3rd claims to show a prepared press statement dated for the end of the month announcing that Travis Kelce and Taylor Swift broke up.[3] The statement appeared to be printed on Kelce’s PR company’s letterhead, making it appear all the more authentic. Since then, internet sleuths discovered a podcast where the PR agency’s founder, Jack Ketsian, talked about often using “showmances” (i.e. fake relationships) to promote a new album, movie, or show. Around the same time, a cartoon image of Kamala Harris wearing an Eagles helmet appeared on Philadelphia bus stops. The ad declared Harris as the “official candidate of the Philadelphia Eagles” and included a URL to the Eagles’ actual voting website.[4]Swift and Kelce deny any impending breakup, and the Eagles stated on X that the ads were counterfeit. 

Currently, there is no defined vehicle to impose liability on those who use AI to spread false information. Litigators at the forefront of developing AI liability face unique Constitutional and Supreme Court limitations concerning freedom of speech. The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.[5] Case law determining protected versus unprotected speech under the First Amendment airs on the side of protecting speech, save a select few categories. See e.g. Brandenburg v. Ohio, 89 S. Ct. 1827 (1969) (speech specifically intended to produce imminent lawless action and is likely to do so is not protected by the First Amendment); Cohen v. California, 91 S. Ct. 1780 (1971) (profane, offensive language is nonetheless First Amendment speech and may not be suppressed under the guise of regulating the “manner” of speech); Reno v. ACLU, 117 S. Ct. 2329 (1997) (striking down a Congressional statute aimed to protect minors from inappropriate Internet material because it effectively suppressed a large amount of speech adults have a right to receive). Additionally, decisions such as Times v. Sullivan, Falwell v. Hustler Magazine, and Curtis Pub Co. v. Butts set extraordinarily high thresholds to impose liability against another person’s speech.[6]

Thus far, privacy torts show the most potential to evolve to incorporate AI. For example, scholars speculate that fabricated material designed to look factual will meet all the criteria for a defamation claim, and that the resulting harm will range from reputational harm, shame, mortification, and emotional harm.[7] For example, the Fourth Circuit considered defamation in the context of misleading video editing. See Va. Citizens Def. League v. Couric, 910 F.3d 780 (4th Cir. 2018) (while Katie Couric’s documentary was edited to imply that she stumped defense league members with her gun-law policy question, this did not lower the plaintiffs lowly enough within the community to arise to defamation). However, any defamation claims filed by Kelce, Swift, or Harris must meet the Constitutional defamation standard, which requires proof of “actual malice” – i.e., the defendant knew the statement was false or acted in reckless disregard of the truth of the matter asserted.[8]

Additionally, false light, may serve as a potential vehicle. A false light claim is actionable when one person publicizes something about another that portrays him in a false light and would be highly offensive to a reasonable person in the plaintiff’s position. See Rest. 2d § 652E. The Restatements note there is no requirement that the published material be defamatory – but the statement must be made with actual malice. While neither the breakup contract nor the Eagles ad harmed Swift’s Kelce’s, or the Eagles’ respective reputations per se, one could argue the posts were made with a reckless disregard for the truth.

A Florida district court recognized theories of Intentional Infliction of Emotional Distress, Invasion of Privacy through Appropriation, and Unjust Enrichment in a case against Shaquille O’Neal for a photo he posted to his Instagram and Twitter accounts.[9] Jahmel Binion suffers from ectodermal dysplasia, a condition which produced abnormalities in the hair, nails, sweat glands, and teeth.[10] O’Neal photoshopped Binion's photograph by adding a side-by-side shot of O'Neal himself, contorting his facial features and "attempting to make a similar face” with the caption: "SMILE PEOPLE."[11] The court took special notice of the fact that O’Neal is no ordinary man, but “an NBA megastar with 8.6 million Twitter followers…His tweets generate substantial interest in certain quarters. The tweet at issue in this lawsuit, for example, received at least 17,703 ‘likes’ and generated 735 comments.”[12] While the court’s considerations here was less focused on the photoshop aspect of the lawsuit, and more on Shaq’s influence and the effect his post had on Binion, the case provides a potential roadmap for subsequent litigation.

So, what are Swift, Kelce, and Harris to do? So far, the only legal “action” taken was Kelce’s PR firm’s statement that it engaged its legal team to initiate proceedings against what- or whomever posted the false image (on its own letterhead). Most Swifties dismissed the breakup contract as fake – especially after Swift’s appearance at the Chiefs’ first home game. However, tabloids have fueled the rumor mill by noting Swift’s absence from the last couple Chiefs games around the same time the alleged breakup was to occur.[13]Similarly, @winstontseng on Instagram admitted to being the artist behind the false Eagles/Harris ads, but denies knowing how they ended up on bus stops.[14] Although neither have pursued legal action at this point, these events pose as examples of the potential harm that will come from AI and deep-fake technology if left without judicial and/or legislative restraint. To quote Dan’s closing remarks on this segment on the September 5th episode: “this is like the shallow end of the fake ads, fake stories.”

Keeton Cross is a 3L at Cumberland School of Law in Birmingham, Alabama. She can be found on X at @keeton-cross and on LinkedIn (Keeton Cross).

[1] Cole Stryker, Eda Kavlakoglu, “What is AI?” available at https://www.ibm.com/topics/artificial-intelligence (Last Updated August 2024)

[2] Ivy Wigmore, deepfake AI (deep fake) TechTarget, available at https://www.techtarget.com/whatis/definition/deepfake (Last Updated March 2023).

[3] https://www.tmz.com/2024/09/04/taylor-swift-travis-kelce-breakup-plan-false/

[4] https://www.cbsnews.com/philadelphia/news/philadelphia-eagles-kamala-harris-endorsement-art/

[5] Virginia v. Black, 123 S. Ct. 1536, 1547 (2003)

[6] Henderson, NOTE: Applying Tort Law to Fabricated Digital Content, 18 Utah L. Rev. 1145, 1152 (2018); see N.Y. Times Co. v. Sullivan, 84 S. Ct. 710 (1964) (establishing “actual malice” as a requirement to defamation); Hustler Magazine v. Falwell, 108 S. Ct. 876 (1988) (public officials must prove the publication contains a statement made with actual malice to recover for intentional infliction of emotional distress); Curtis Pub. Co. v. Butts,  87 S. Ct. 1975 (1967) (public figures may recover for defamation only when the publication was highly unreasonable and makes substantial danger to their reputation apparent).

[7] See Henderson, supra

[8] Sullivan, 84 S. Ct. at 725.

[9] Binion v. O'Neal, No. 15-60869-CIV, 2016 U.S. Dist. LEXIS 2906, at *20 (S.D. Fla. Jan. 11, 2016)

[10] Id. at *4.

[11] Id.

[12] Id.

[13] Joseph McBride, “Taylor Swift noticeably absent from Travis Kelce game after 'contract split date,' available at  https://www.mirror.co.uk/sport/other-sports/american-sports/taylor-swift-travis-kelce-contract-33780711 (Last Updated Sep. 29, 2024).

[14] Emily Rose Grassi, “Artist behind fake ads claiming the Eagles endorse Kamala Harris comes forward,” available at https://www.nbcphiladelphia.com/news/local/philadelphia-eagles-kamala-harris-fake-ads/3969447/ (Last updated September 13, 2024).