The Daily Beast Podcast - This Bill Would Ban Single People From Sending Sexy Selfies

Episode Date: January 28, 2024

Reason Magazine’s senior editor, Elizabeth Nolan Brown, tells The New Abnormal why a bill by Oklahoma Senator Dusty Deevers that would make it illegal to sext anyone other than your spouse is far from a fringe position in the GOP. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Andy Levy, former Fox News and CNN-HLN guy and current cable news conscientious objector. I'm a former libertarian who now sits comfortably on the left. Hi, I'm Danielle Moody, former educator and recovering lobbyist. But today, I'm an unapologetic, woke commentator on America's threats to democracy. And I'm producer Jesse Kedinan, and I'm here to make sure things don't go too far off the rails. We're here to have fun, smart conversations with some of the most knowledgeable and entertaining people in politics, media, and beyond. Our goal is to try and make sense of our current crazy world, our new abnormal, and hopefully even make you laugh through the tears. Hello and welcome to another Sunday bonus edition of the new abnormal.

We thank you so much for being here. Say we have an extra special guest with Reason Magazine senior editor Elizabeth Nolan Brown. She's going to talk to us about the totally insane bill out of Oklahoma that would bar you from sending sexy selfies unless you're married. as well as a new AI fraud bill that has some serious problems. But first, let's have some fun. Andy, Danielle, I have some news. We're not ready to listen to some clips. What?

Oh. Instead, I have a presentation of dementia J. Trump's growing mental decline. Since I'd argue this week, we got most of his greatest hits of him slipping into a very bad mental state. So with that, are you ready to listen to a demented old man ramble? Demented old man ramble. All right, let's start with, there's no words. I can't put into justice how to intro this. I tried and I just can't do it.

Reports the crowds, you know. By the way, they never report the crowd on January 6th. You know, Nikki Halley, Nikki Halley, you know they destroyed all of the information, all of the evidence, everything, deleted and destroyed all of it, all of it, because of lots of things. Like Nikki Hailey is in charge of security.

offered her 10,000 people. Yeah, yeah. I mean, you know, her name does begin with N. So I guess that's how you would mix up your former ambassador and Nancy Pelosi, the former Speaker of the House, who was the speaker on January 6, 2021. Wow. But all you have to do is say Nikki Haley three times and apparently she appears. There's that too.

It's like Beetlejuice. Right, or Candyman, yeah. Mm-hmm. We talked about this earlier in the week, and he is just, he's so far gone. The amazing thing is we concentrate on the fact that he doesn't know the difference between Nikki Halley and Nancy Pelosi, and we should talk about that. But also, he just sits there and says that they destroyed all the evidence of whatever he thinks. What does he think they destroyed the evidence of January 6th?

I mean, we've all seen the video. We have literally all seen the video over and over again. some cases. The evidence is right there. And I assume this is, you know, what he's saying is they destroyed the evidence of what? Of Antifa actually being the ones who did it. In which case, why do you keep saying you're going to pardon all the people who have been thrown in jail for it? Everything is just so stupid and he is just, he is gone, man. Is it destroyed the evidence like is there a pool in the Capitol building that maybe they might have just flung? the hallways with?

Oops, I may be mixing something up here. Easy mistake. All right. Well, we often have to talk about how America is kind of reaping what it's sowed. And I think on that note, Donald Day Trump is on to something with this rant. Maybe this should be our new Pledge of Allegiance. She's incapable of solving, even the smallest, smallest problem. The simplest of problems we can no longer solve.

we can't do anything. We are an institute and a powerful death penalty. We will put this on. We have to... What? I first have to ask, was that music added in? From what my research showed, that music is some of the music that they play at his rally.

So it was not added in. Oh, my God. So, like, he was actually just speaking to that music? That is what Twitter showed me when I tried to fact check, but we can't trust Twitter for fact-checking. That's true. Okay. All right.

Regardless. What the fuck was he saying? What were you talking about? We are an institute of a death penalty. That sounds like America to me, buddy. I don't know what the fuck you're talking about. And she? And who is the she?

America? This is the Lady Liberty. Wow. America the beautiful. You lost me with that one. Really? You guys can't see kids in school playing their hands over their hearts and looking at the flag and reciting this?

We are an institute in a powerful death penalty. We will put this on. Those are just words put together. They're not even a sentence. I don't. You know, I like to think that after eight, nine, ten years of this, I've become fairly fluent in Trump, but I can't parse this one. No.

Wow. Jesse, I have to say, this does feel a lot like we're listening to clips. Listen, like I was lied to. This is like when they just slightly reformat the show a little. Like, you know, like, let me have the illusion. I'm doing my job and working hard. Fair enough. Thank you.

Thank you. I appreciate it. Now you can put on your resume. Came up with new segment. Oh, shit. My quarterly report's going great. Okay. Understood.

All right. Because Mr. Trump's supporters are morons, they have given us our quiet part out loud segment for the week. Here's one saying what Mr. Trump would like to keep quiet, and Project 2025 from the Heritage Foundation has wet dreams to. You're right. That's very interesting. Don't say that too loud, Del Sont said. He wants more he's a fascist. You know, they love to call me a fascist. I hate the way he speaks. I love to call it. I just hate it so much. They love to call me a fascist. Like, it's like jazz hands constantly coming out of his mouth. I like that. That's really good.

I'm going to start putting that emoji at the end of his post. Just picture all the truth posts with the jazz hands at the end. With the jazz hands at the end. Yeah, I like this. This is going to make it much happier when I read them now. By the way, because it was a little hard to understand him, the guy from the audience shouted, I think it was 12 more years of Trump. That's correct.

And that's what Trump was saying you're right to, but don't say that too loud. Good stuff. Mm-hmm. Yeah. And I have a feeling, you know, we used to chant, four more years at a lot of rallies for re-income. It's like I could see this being the locker up of the new season, you know, 12 more years. So I could just see the supporters glomming on to this one.

Oh, absolutely. And so 12, we're getting that number from where exactly? Like, are they also changing the terms, like a term limit? Like, so it's not four years? Actuarial tables. That's where I was going with this. Okay. So there's very, very big news this week.

Senator Tim Scott, he got engaged to what many said is his fake girlfriend. Mr. Trump wanted to wish him a happy engagement in the way he only he can. Today was a big story, the biggest story out there. He's engaged to be married. We never thought this was going to happen. What's going on? There's one way to congratulate somebody. And I'm sure that big fucking dummy was there with a grin.

Me neither. Yeah. I hope they got the postage off of her. Oh, God. I mean, look, I guess there will be cynical people who will say, well, Tim Scott is maybe interested in being Trump's vice president. And maybe that has something to do with the timing of this surprise announcement to this woman that nobody has ever apparently met. And to those people, I would say, shame on you. and also you are correct.

I started to have some sympathy. You know, Andy, you and I are on in the years and unmarried. I could see Danielle saying this about us if we either of us ever got engaged. I'm going to play it. I'm going to play it. I think of the end of the is. Like, we never thought it would happen. What is going on?

What is going on? I'm thinking Trump impersonator singing telegram. Yeah, I love this. Thank you for the idea. Well, if I ever get engaged when there are rumors going around that I've been asked to join the daily, you will know that it's a phony engagement. Oh, okay. Okay. I'm tired of listening to that buffoon.

We do sadly have to deal with some very, very horrifying business here. Here we have a clip from Charlie Kirk's podcast and Mr. Charlie Kirk. You may remember Mr. Kirk from mounting an effort to defame Dr. Martin Luther King in recent weeks. here we have a real quiet out loud moment from him. And that's why I think this United story and the DEI story hits so hard because we've all been in the back of a plane when the turbulence hits or when you're flying through a storm and you're like, I'm so glad I saw the guy with the right stuff

and the square jaw getting to the cockpit before we took off. And I feel better now. I mean, like, you want to go thought crime? Like, I'm sorry if I see a black pilot, I'm going to be like, boy, I hope he's qualified. Well, that's the main theory. You wouldn't have, you wouldn't have done that before. That's not an immediate, no, you wouldn't have done that before. That's not what I believe.

It is the reality the left has created. Oh, shut the fuck up. Yeah, that's not who he is. That's not what he believes. Yeah, because you know, the first thing that I think about when there's turbulence on a plane is thank God for white pilots. Personally, it's the square jaw that really gives me the confidence in my pilot. Because apparently they're all drawn by Marvel. What the fuck are you talking about, sir?

I mean, the first thing I think about is, thank God planes. fly themselves. Like, do you think the pilot is up there? This is not top gun when you're an airline pilot. Like, these planes, I'm not minimizing the skill of a pilot. I'm just saying these planes mostly fly themselves at this point. This is this, the latest boogeyman for the right is this DEI, diversity and equity and inclusion.

And they are trying to blame the fact that all these Boeing planes, are falling apart on DEI because there's nothing that they won't try to tie into whatever their recent thing is. You may remember critical race theory. It feels like ancient history now. That was DEI before DEI came along. And before that, it was just affirmative action. And before that, it was whatever they decided. And they're very upfront about this. Chris Rufo, who is sort of, you know, the glamour boy behind all of this and gets the New York Times profiles. with the pictures of him on the beach and whatever. He literally gets out there and says,

what we want to do is make everyone equate things like DEI with things like planes falling apart. Like he literally, he doesn't, there's no quiet part for him. He literally says this shit. And that's exactly what Charlie Kirk is doing here. And I would also point out that when he's talking about the square jawed pilots,

there's obviously sexism and misogynism built in there. He's not specifically saying he doesn't want to, woman pilot, but it's what he means. These are just horrible people. I hate it. A new bill in the House of Representatives could outlaw things like parodies and political cartoons, and as soon-to-be-introduced bill in Oklahoma, could make sexting anyone other than your spouse illegal. Here now to explain these stupidities is Elizabeth Nolan Brown, senior editor of Reason and author of Reason's Sex and Tech newsletter. Elizabeth, thanks so much for being here. Yeah, thank you for having me on. So you've written about both these pieces of legislation at Reason

Let's start with the federal bill. It's called the no artificial intelligence, fake replicas, and unauthorized duplications, which is where they come up with these dumb names so that they can get an acronym in this case, no AI fraud act. So how does a bill with that name that specifically talks about AI fraud threaten parodying politicians, for example? Are you telling me that it's not narrowly and expertly crafted so that it only applies specifically to the use of AI for fraudulent purposes?

Because I refuse to believe that, Elizabeth. Yeah, shockingly, this bill trying to regulate a new technology is not perfectly clear in defining that technology or narrowly crafted to target it. You know, yeah, it purports to be about stopping things. Like, it mentions there was a song titled Heart on My Sleeve, which purported to be by Drake in the weekend but wasn't, or someone made a fake endorsement with Tom Hanks saying that he was endorsing

a dental plan that he didn't. So it says that it's about stuff like that, using AI to like, you know, impersonate celebrities and sort of do fraudulent things. But of course, the way the bill is written would encompass so much more than that. It essentially creates a federal right publicity right. It says that your own voice and your own likeness are your own intellectual property and no one else can use them without it being a written agreement that involves a lawyer and a collective bargaining agreement saying that you allow it. If that's not the case, then a person could sue if their likeness or voids. was used in any way. And the way it defines this, it doesn't have to be anything that involves

AI being used to create the depiction or the audio. It doesn't have to involve fraud. It says that even if you state that this is a parody or whatever, that it's still, that's not a defense. So the way it's written, it's brought enough that it could, you know, if someone is being depicted on an SNL skit or in a cartoon, like South Park or Family Guy, or in a political cartoon, or basically just anything that where EFF, the electronic frontier, said, probably if you're recording or portraying a human, it's probably covered. Like, that's how broad the bill has been written.

It's insane. And something you just said really got at me that even if you clearly state that you've created something that is, you know, not authorized by the person who is being depicted. So, like, if you draw someone digitally and you say clearly, you know, this is a parody or whatever, it would matter. matter, you would still run a foul of this law. Right. If you, if you know, you had a, you had a Twitter account or a TikTok account or something pretending to be some political figure,

pretending to be Trump, paternity Biden, whatever. I mean, very clearly stated like fake Donald Trump or something like that, that would be no defense, even if it was very, very clearly parody. If you used his, you know, picture as your profile pick or, you know, pretended to use his voice, then that, then that could fall under the confines of this law. And then another thing I don't get, Or actually, I think the bill's authors, representatives Maria Elvira Salazar, a Republican for Florida, and Madeline Dean, a Democrat from Pennsylvania. They talk about, like, this applies to what they call digital depictions of people. Do they not realize that, at least as I see it, a digital depiction would cover, say, like a professional artist or professional comic book artist or any kind of artist who creates using, like, for example, an Apple pencil and an iPad pro? Yeah, I mean, it could be even broader than that.

I mean, if you think about it, like, almost everyone who takes a photo today is not taking that photo with, you know, film and an old school. They're taking it on their phone. They're taking a digital image. And they're generally using a, you know, digital platform of some sort, be it a phone or a computer or, you know, to share that image. So it could, you know, it could be read to cover literally any photograph of someone. It could be read to cover news photographs or all sorts of situations where we would want to be capturing someone. digital like this in a way that wasn't fraudulent at all. Right. Exactly. So like if you, you know, used a picture because it gets into this murky area and this is where I hate when

lawmakers come up with these bills and they clearly don't know shit about technology. And you can take a photo and digitally retouch it to like, let's say do nothing to the image of the person, but remove the background or or take out someone else in the background. And then all of a sudden It's like, nope, you digitally, you know, messed with this. So now you're under this law. Definitely, yeah. And, you know, the thing is that, like, people, defenders of the law will say, like, well, you know,

but okay, some of these uses wouldn't, that would not stand up in court, you know, like, it's actually only going to be used for the bad stuff. It might be written this broadly, but like nobody's going to actually, you know, award someone a lawsuit because they, you know, took a picture of someone and digitally altered the background. But the thing is, the way it's written lawsuits would be allowed to be brought

for that criteria. And so if you wanted to defend yourself, you'd still have to muster, the time and the resources and everything to defend yourself in court over things that were very clearly First Amendment protected speech. Yeah, back in the day, we used to call that a chilling effect. Yes, yes, I believe. I still do. Okay. A lot of this sounds to me like government officials saying, we're sick of you people making fun of us. Yes. I mean, that's, yeah, that's obviously speculation, but that's sort of what it seems like, you know, Mike Vaznig at Tector has pointed out that there's been

a push for for decades now to create a federal right of publicity, which is what this would do, you know, saying that, you know, you have your, you know, you can sue if someone uses your likeness or your image without your consent. And this sort of uses AI and this new technology to usher in something that the politicians have long wanted because it would make it a lot easier for politicians to sue people who use their images and make fun of them or to at least, you know, chill speech so much that, you know, say social media platforms aren't going to allow it because they just don't want to bother with the lawsuits. Yeah, and that's another thing that I think you point out in the article that this law

does not, this law would apply to the platforms that host these images? Yes, it wouldn't just apply to the creator of the image, but also anyone who helps distribute it or publish it and things like that. And that's a case where, you know, the federal law Section 230, you would think it would apply because, you know, Section 230 prohibits, you know, social media platforms and other of your other digital platforms from being held liable for user content. But there are some exceptions. And intellectual property is one exception.

And this bill specifically says that this like right to your likeness would fall under intellectual property exceptions. Oh, okay. That's interesting. Because I was trying to figure out how that, you know, worked with Section 230 being in place. All right. Let's move to Oklahoma, not literally. I know you're a married woman and I respect that.

The bill in question here is a quote unquote anti-porn measure sponsored by Republican state senator, Dusty Devers, which somehow is not a poor name. What does this bill aim to do? This bill is even more nuts. Dusty Devers, he got into office. He was just elected, I think, last fall. And he just got novice and he just put forth, like, a whole bunch of bonkers bills. Like, another one that he put forth last week is one that would end no-fault divorce in

Oklahoma. So just if that tells you where this guy is coming from. The new bill would create a new category under, like, the obscenity and statutes in the state called Unmarked. awful pornography. And it's basically broad enough to capture, you know, obviously things that we think of as porn, like, you know, videos or of people having sex. But it would also include, you know, any sort of fetish stuff. Like it says, you know, the bondage would specifically be off limits. And then just even the, you know, the very tame stuff of, you know, sort of playboy photos or

even the stuff that people maybe often like, you know, text each other. It says any lewd exhibition of the genitals, buttocks, or if such person is a female, the breast, for the. For the purpose of sexual stimulation. So it's broad enough to include like any person's like butt selfie, for example. It includes, you know, live performances and plays. So that would seem to include, you know, strip clubs, definitely, and maybe also burlesque and drag performances and things like that. Yeah, this is unreal. And I, you know, I was looking through the text of the bill as you describe it. And there's always things that jump out at me. One of the things that you wrote about is you say that Under this bill, unlawful depictions include, quote, sexual intercourse, which is normal or perverted.

Like, as defined by dusty Divers? Yeah, I guess, yeah, that's the other thing. It's like, who would decide this? Because there are all these mentions in there, I guess, to try and make this seem like it's a little bit less totally unconstitutional. There are all these things saying that, like, well, this stuff wouldn't be banned or it wouldn't be criminalized if it's found to have serious literary or artistic or political or scientific or educational merits. You know, that doesn't really save anything because, again, like, who is going to say that? The same people that would introduce or pass a law like this? Like, I don't think that they're capable of deciding that.

Yeah. How does this play with sort of the whatever federal definitions of pornography that we have in place today? So it plays on the obscenity thing, which is sort of like a three prong task saying that, you know, it has to be sexual conduct that's patently offensive by contemporary community standards. It appeals to a prurient interest in sex and lacks, you know, you know, the serious literary, et cetera, value. That's, you know, the way that Oklahoma defines obscenity. So it specifically says that all unlawful porn would count as that unless it has this value. And then it goes on to say that, you know, it would be illegal to make such porn.

It would be illegal to distribute such porn. And it would even be illegal to view or possess such porn. So the way it's written, it's broad enough to be like, if you got a selfie from someone, if you got that butt selfie from someone and you looked at it, you could be guilty of a felony, which would be punishable by up the 20 years in prison or a $25,000 fine. This is unbelievable. And as if all these definitions that are used in the bill aren't bad enough, it's one of these bills that empowers anyone to bring a suit against someone if they think they're violating it.

It's one of these tattletail bills. Yeah, it's like the Texas abortion Belzee Law Bill where it's like it can be through private lawsuits. It criminalizes it so a prosecutor could go after it. But also it says anybody has a right to bring a lawsuit against anybody who, you know, distributes or creates unlawful pornography. Again, it's like one of those weird attempts to try and get around the First Amendment concerns by being like, well, no, no, no. Okay, but what if we don't enforce it? What if just like other people do? Then, you know, it's totally constitutional, which is something we're seeing more and more with the way that these sort of very draconian laws are being written these

days. Yeah, it's absolutely unbelievable. And also, couldn't this lead to, let's say, there's someone I don't like and so I send them a naked picture from some encrypted device so it can't be traced back to me. And then the minute they look at it, they have violated the law and then I turn them in. Right. It's again, like one of those things where people will say like, okay, well, obviously it's not going to be used to go after people who just like do this very tame stuff. But the thing with laws like this is that, or bills like this is that, you know, they could be selectively enforced. So again, yes, it's probably, I don't think that Oklahoma, if this bill would become law, I don't think they'd, you know, have a police to go around and like monitor everyone's

phones, but it could be used against people who had particular enemies who wanted it to be used against them, or it could be used against people that police were going after for other reasons because they were already in marginalized communities and things like that. Also, it contains this weird clause, I forgot that much of this, where it says this is not meant to go after married couples who are communicating with each other. So it has this like weird carve-out if you're, if you're sexy moment. Oh my God. Yeah, that's, that's unbelievable. You know, it's funny that there's something that you brought up for both of these bills, and it's like, you know, that proponents say, well, it would never be used in this way, which first of all,

of course it would. But second of all, that's a cop out. Like, write the bill so that it can't be used that way. Don't just say, you know, oh, well, it would never be used that way. Right. And because, I mean, we see that. Every time someone says that, then eventually, though, once the law gets passed, you do see people trying to use it in that more extreme way.

If you write a law broad enough to be used in an extreme way, it's going to be used by extremists. is the, you know, bottom line. Yeah, absolutely. And you brought up that Dusty Devers is a newly elected state senator, I think it is, and, you know, that he's put up a bunch of wacky bills. And so, as you say, it would be really easy to just dismiss this bill as, oh, this is some weird asshole legislator proposing something that has no chance of passing. But as you point out, this is part of a much larger wave of anti-porn and anti-sexual

expression efforts that Republicans are undertaking all across the country. Yeah, maybe I'm naive, but I don't think that this bill is written is going to pass and become all in Oklahoma. But I still think it was worth pointing out because it's, you know, it's not just one one guy who is doing this. Like we're seeing similar sort of attitude, similar legislation in state houses around the country. We're seeing, you know, national lawmakers like J.D. Vance and Josh Hawley, you know, talking about how we need to ban porn. We've seen, you know, New York Times, the Rostoo That and the Times wrote about, you know, how we should ban porn. Like, this is, this is not a totally fringe position within, within today's GOP.

Yeah. And also, I have to say, I'm like, if the last seven or eight years have taught me anything, it's to not dismiss these bills as crazy things that have absolutely no chance being passed, because I think, I feel like we've seen time and time again, that there's a lot of bills that, at least I think that, that suddenly I turn around and next thing I know their law. Right. I mean, like, I keep thinking of the Compostock Act, which is this, you know, more than a century old bill that prohibits, you know, mailing them obscene materials, including, you know, abortion instruments through the mail.

And everyone thought, like, well, we don't need to repeal that because, like, whatever, it hasn't been used in, in a hundred years because no one's going to use it. And now suddenly with, you know, Roe overturn, a lot of state Republicans are like, yes, we need to bring back the Comstock Act and start prosecutions under this again. So, you know, if you have these bills out there, again, people will use them in ways that are extreme. Yeah. I want to jump back just for a second before we end to the No AI Fraud Act. I'm curious what you think about this. Why do they use the phrase digital depiction when that is such a broad term that encompasses so many things that do not include AI? Is it straight up ignorance? Or is it just, you know, are they trying to get at something here that I'm not seeing?

I don't really know. I mean, yeah, I think the cynical way to interpret it is that, you know, they want it to be broad and vague and malleable so that it could be used to go after whatever people in power don't like. The more charitable explanation is just that a lot of times, you know, early drafts of bills are written by legislative staffers who are not actually experts in, you know, anything in technology or First Amendment law or anything like that. And they just sort of are like, how are we going to, how are we going to write something broad enough to get after what we want? And they just. don't, they're just not precise in writing it. And I think, you know, I don't know which it is. I think either one is a believable explanation. Yeah. And maybe I'm being conspiratorial here, but sometimes I think, because I know that, like, for example, film directors will notoriously put in extra scenes that they know they'll have to cut in order to get a certain rating. And then by doing that, like, they'll put in more extreme scenes that they know that the NPAA will say, well, you have to cut this. But by doing that, it lets sort of maybe less obviously, for example, R-rated type scenes slide through with a PG-13 rating.

And so sometimes I think, oh, they put all this stuff in the bill so then it can get watered down a little bit and then they can say, see, we compromised. And you're still left with a horrible bill. Yeah, I think that's definitely plausible with the Oklahoma one too, that, you know, it's so it's like, okay, well, we'll let sexy selfies stand. And then it's like, oh, okay, we compromise. Like, let's just board all the, ban all the rest of porn. So I definitely see some of that in that one. Yeah, okay, good. So I'm not being conspiratorial, maybe. Well, we both are. Or we both are. Yeah, that's probably a good bet. Elizabeth, thank you so much for being here and talking to us about these crazy bills. And I enjoy your writing and you kill it on your beat.

What you do is, I think, not to overstate it. I think it's an actual service to this country. No, I really do. I know that sounds, you know, whatever. But I really do think that. And I've always enjoyed reading your writing. Elizabeth, thanks so much. Much for being here. Thank you for having me. Hope you enjoy checking out this episode of The New Abnormal. We're back every Tuesday, Friday, and Sunday. If you enjoyed it, please share it with a friend and keep the conversation going. This podcast is a Daily Beast production with production by Jesse Cannon and Seamus Calder.

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