Last week, civil rights attorney Nekima Levy Armstrong was arrested after participating in a protest at a church in St. Paul, Minnesota, where the pastor allegedly worked with ICE. The White House shared an image of Levy Armstrong after the arrest that appeared to show her crying. But the image is fake, apparently altered by AI to make him look distressed or regretful. Which raises an interesting new question: What can you do if the most powerful government in the world arrests you on false charges and then shares fake photos of you? Do you have any recourse?
Nekima Levy Armstrong and St. Paul school board member Chauntyll Allen were arrested Jan. 23 for violating the FACE Act, which prohibits attempts to intimidate, threaten or interfere with services in places of worship. Video of the arrest captured by Levy Armstrong’s husband shows officers not only recording her, but assuring her that the footage would not be used on social media.
“Why are you recording?” Levy Armstrong asked in the 7 minute video. “I would ask you not to record.”
“It’s not going to be on Twitter,” the unidentified agent told him. “It’s not going to happen on something like this.”
But it was posted on Twitter, now known as X. Homeland Security Secretary Kristi Noem posted an image showing Levy Armstrong with a relatively neutral, confident and stoic expression. But the White House X account posted something different. This account showed Levy Armstrong crying, tears streaming down her face. It was most likely created with AI. His lawyer, Jordan Kushner, told the Associated Press that it was defamation.
“It is so outrageous that the White House would make up stories about someone to try to discredit them,” Kushner said. “She was completely calm, composed and rational. No one was crying. So this is an outrageous defamation.”
Gizmodo spoke with experts to get a better idea of what Levy Armstrong might do after such an egregious move from the White House. And the consensus seems to be that any attempt to achieve justice will be complicated.
Eric Goldman, a law professor at Santa Clara University School of Law, pointed out that the government has tried to crack down on malicious uses of AI to misrepresent people, but the White House is turning around and doing just that, “making an example of the worst behavior that it is trying to prevent its citizens from engaging in.”
“It’s so shocking to see the government putting out a deliberately false image without claiming they were manipulating the image. That’s what we call government propaganda,” Goldman said.
Goldman says there are several layers to a defamation claim that Levy Armstrong would need to establish to be successful.
“She would have to demonstrate that there was a false statement of fact. And normally we treat photos as conclusive statements of fact, that they are true for what they represent, but it wouldn’t surprise me if the government argued that it was a parody or that it was so blatantly false that everyone knew it was false and therefore it wasn’t a statement of fact,” Goldman said.
“Now that’s just sophistry, isn’t it? If defamation law means anything, it would apply to a fictitious photo presented as truthful. That’s, for example, what it’s supposed to cover. And yet the government could very well win on the very first element,” Goldman continued.
A statement of fact must also harm someone’s reputation, and that’s another hurdle, according to Goldman. You might expect someone to cry when they’re arrested, which means he says it’s hard to argue that his reputation has been tarnished. There is also the question of whether she is a public figure.
“There is a First Amendment defense that limits claims of defamation. And they raised the bar on claims that apply to matters of public interest and public figures. And I would say that potentially the subject of the photo could be considered a public figure and his arrest was clearly a matter of public concern,” Goldman said.
Finally, it would have to demonstrate that the government showed “actual malice” regarding the truth of the statements it made, meaning that it knew that what it presented was false with the intention of damaging its reputation. “Now, if you fictionalize a photo and present it as real, I think you could have some real malice,” Goldman explained. “However, I don’t know how that would happen under these circumstances.”
The long and the short? Goldman says: “It’s not clear to me that even if she sues, she wins. »
Other legal experts Gizmodo spoke with had much the same answer ultimately. There are simply no strong enough arguments to justify defamation. The cure for government lies about citizens is to replace political leaders.
“We assumed that if politicians published false information, voters would punish them,” Goldman said. “And there may have been a time when that was true, but that model is clearly broken.”
It’s unclear which AI image generator was used to take the crying photo. Gizmodo tested various AI chatbots to see what kinds of guardrails might be in place for this sort of thing. Google’s Gemini and OpenAI’s ChatGPT made him cry. Microsoft Co-Pilot declined, as did Anthropic’s Claude, explaining: “I can’t edit images to add manipulated emotional expressions to photos of real people. This could be used to misrepresent someone or create misleading content.”
And Grok from xAI? The service was down when we tried. But it’s safe to say that Grok will probably let you make people cry in an attempt to ridicule them, given how much Elon Musk will let you do.
This is a unique moment in modern American history. The US government has been caught lying repeatedly about matters big and small for as long as it has existed. But President Donald Trump’s second-term lies are so blatantly false they’re almost laughable.
Kristi Noem stood up in front of the microphones on Sunday to call out Alex Pretti, the man killed by ICE agents in Minneapolisa domestic terrorist. She said the 37-year-old VA intensive care nurse came forward to “perpetuate the violence.” It would be funny if it wasn’t so horrible. The government lies with impunity, and it doesn’t care that we all watch a compassionate and caring man murdered in the street by masked agents of the state.
When the government goes even further than just words, trying to manipulate the images we see with AI falsification, it seems even worse, as if we are on the precipice of a post-truth society. Unfortunately, many Trump voters don’t seem to care.
“I don’t think we’ve had enough discussion about AI deepfakes being used by government propaganda for them to lie against their voters,” Goldman said. “And we may not have adequate resources to punish the government for such abuses.” »
“I don’t know what the remedies are. I fear we don’t have them strong enough, but I fear even more that voters will reward politicians for their abusive propaganda. That might just be what owning liberals means.”
