Christopher Kohls; Mary Franson v. Keith M. Ellison

United States Court of Appeals
For the Eighth Circuit
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No. 25-1300
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Christopher Kohls; Mary Franson,
lllllllllllllllllllllPlaintiffs - Appellants,
v.
Keith M. Ellison, in his official capacity as Attorney General of Minnesota; Chad
Larson, in his official capacity as County Attorney of Douglas County,
lllllllllllllllllllllDefendants - Appellees.
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 22, 2025
Filed: February 9, 2026
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Before COLLOTON, Chief Judge, LOKEN and BENTON, Circuit Judges.
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COLLOTON, Chief Judge.
Christopher Kohls and Mary Franson sued officials in Minnesota seeking to
enjoin them from enforcing a Minnesota statute that regulates the use of “deep fake”
technology to influence elections. A “deep fake” is defined 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.” Minn. Stat.

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§ 609.771, subd. 1(c)(1). The district court* determined that only Franson had
standing to challenge the statute, and then denied a motion for a preliminary
injunction on the ground that she had unreasonably delayed in seeking relief. We
conclude that there was no abuse of discretion in denying the request for
extraordinary relief.
I.
In May 2023, the Minnesota legislature enacted a law regulating deep fakes.
The relevant text reads as follows:
A person who disseminates a deep fake or enters into a contract or other
agreement to disseminate a deep fake is guilty . . . if the person knows
or reasonably should know that the item being disseminated is a deep
fake and dissemination:
(1) takes place within 90 days before an election;
(2) is made without the consent of the depicted individual; and
(3) is made with the intent to injure a candidate or influence the result
of an election.
Minn. Stat. § 609.771, subd. 2 (2023). A deep fake is defined as “any video
recording, motion-picture film, sound recording, electronic image, or photograph, or
any technological representation of speech or conduct . . . 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., subd. 1(c)(1) (2023).
In 2024, the legislature amended the law. The amendment expanded the scope
of the prohibition to include the periods “within 90 days before a political party
nominating convention” or “after the start of the absentee voting period.” Id., subds.
*The Honorable Laura M. Provinzino, United States District Judge for the
District of Minnesota.
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2(a)(3)(i), 2(a)(3)(ii). As amended, the statute further provides 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. Id., subds. 3(b), 3(c).
Kohls is a political commentator who produces and publishes parodies on
social media. On July 26, 2024, Kohls broadcast on the YouTube website a video
generated by artificial intelligence that depicted a likeness of Vice President Harris
making statements that she never made. The video was labeled as “PARODY” and
included a disclaimer stating that “[s]ounds or visuals were significantly edited or
digitally generated.” Elon Musk shared the video on the “X” social networking
service but did not convey that the video was a parody or was generated artificially.
Franson, a member of the Minnesota state legislature, shared Musk’s post on her own
“X” account. She, too, did not communicate that the video was a parody.
In September 2024, Kohls and Franson challenged the deep fake statute by
suing the attorney general of Minnesota and the county attorney of Douglas County
in their official capacities. They alleged that the statute abridges their freedom of
speech in violation of the First and Fourteenth Amendments, and sought to enjoin the
officials from enforcing the statute.
On October 11, 2024, more than sixteen months after the legislature enacted
the challenged provisions in May 2023, Kohls and Franson moved for a preliminary
injunction. The district court ruled that Kohls lacked standing because he posted only
videos that were outside the scope of the deep fake statute. The court concluded that
Franson had standing, but denied her motion for a preliminary injunction because she
unreasonably delayed in seeking relief. We review the question of Article III
standing de novo and the decision to deny a preliminary injunction for abuse of
discretion. Sch. of the Ozarks, Inc. v. Biden, 41 F.4th 992, 997 (8th Cir. 2022); Novus
Franchising, Inc. v. Dawson, 725 F.3d 885, 893 (8th Cir. 2013).
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II.
To establish Article III standing, a plaintiff must show that he suffered an
injury in fact, that the challenged conduct caused the injury, and that the requested
relief would redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992). Where, as here, a plaintiff seeks review of a statute before it is enforced, he
must demonstrate that there is “an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573
U.S. 149, 159 (2014) (internal quotation omitted). At the preliminary injunction
stage, a plaintiff must make a “clear showing” that he is “likely” to establish each
element of standing. Murthy v. Missouri, 603 U.S. 43, 58 (2024).
The district court ruled that only Franson had standing. On appeal, Kohls
argues that he, too, has standing. The officials counter that Franson lacks standing.
We believe that the district court resolved the standing issues correctly on this record.
Kohls argues that he is injured because § 609.771 arguably proscribes his
online parodies. To qualify as a deep fake under the statute, a video must be “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.” § 609.771, subd.
1(c)(1). By labeling his videos as parody, however, Kohls communicates that
statements in the videos “cannot reasonably [be] interpreted as stating actual facts.”
Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990) (alteration in original) (internal
quotation omitted). Kohls’s videos, labeled as parodies, are not deep fakes under the
statute, so he is not injured by any threat of enforcement.
Kohls contends alternatively that he is injured because he posts other videos
that are not labeled as parodies. In the district court, however, Kohls presented no
evidence that he posted videos without disclaimers. The district court found, without
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clear error, that “[f]rom the record presented by Plaintiffs, it appears that Kohls has
only ever posted constitutional parody.” Kohls thus failed to show that he faces a
credible threat of prosecution under § 609.771.
Kohls further maintains that he is injured by the threat of enforcement against
third parties. His verified complaint alleges that “[t]he chilling effect and
enforcement of the law will dissuade others from sharing his content and preclude
him from earning a living, which he currently does via monetization of his content on
YouTube and X.”
“Where traceability and redressability depend on the conduct of a third party
not before the court, ‘standing is not precluded, but it is ordinarily substantially more
difficult to establish.’” Competitive Enter. Inst. v. FCC, 970 F.3d 372, 381 (D.C. Cir.
2020) (quoting Defs. of Wildlife, 504 U.S. at 562). A plaintiff must show that third
parties will act “in such manner as to produce causation and permit redressability of
injury.” Id. (internal quotation omitted). A permissible theory of standing “does not
rest on mere speculation about the decisions of third parties; it relies instead on the
predictable effect of Government action on the decisions of third parties.” Dep’t of
Com. v. New York, 588 U.S. 752, 768 (2019); see Competitive Enter. Inst, 970 F.3d
at 381-82.
The record is insufficient to establish standing on this theory. The evidence
showed that Kohls’s video of July 26 depicting a likeness of Vice President Harris
“was retweeted over 240 thousand times.” Kohls did not present evidence that others
were deterred from sharing the video or that he lost income from any such reduction
in sharing. A plaintiff cannot establish standing based merely on an unsupported
assumption that some users of YouTube or X might decline to share a video because
of the Minnesota statute.
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The officials argue that Franson lacks standing even though she reshared
Kohls’s video depicting Vice President Harris without any accompanying label or
disclaimer. The district court concluded that Franson’s conduct was arguably
proscribed by § 609.771, because a reasonable person could believe that the video
depicted actual speech or conduct of Harris in which she never engaged.
We see no error in this conclusion. The officials argue that even without any
disclaimers, no reasonable person would believe that the video depicted actual speech
or conduct of Harris. The officials’ own expert, however, testified that deep fake
videos are “plausibly realistic, so much so that users often cannot tell whether they
are real or not.” There is no evidence that Kohls’s deep fake videos are clearly
unrealistic. And there was evidence that senior public officials, including a sitting
governor and a sitting United States Senator, believed that the July 26 video was
realistic. The district court properly concluded that Franson established standing to
sue.
III.
Franson argues that the district court abused its discretion in denying her
request for a preliminary injunction. “A preliminary injunction is an extraordinary
remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 24 (2008). The district court did not rule on the constitutionality of the statute, but
concluded that Franson was not entitled to extraordinary injunctive relief because she
unreasonably delayed in bringing her challenge.
A plaintiff seeking a preliminary injunction must demonstrate that she is “likely
to suffer irreparable harm” without relief. Id. at 20. A plaintiff’s unreasonable delay
in seeking a preliminary injunction “vitiates much of the force of their allegations of
irreparable harm.” Beame v. Friends of the Earth, 434 U.S. 1310, 1313 (1977). That
is so because the “failure to act sooner undercuts the sense of urgency that ordinarily
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accompanies a motion for preliminary relief.” Citibank, N.A. v. Citytrust, 756 F.2d
273, 277 (2d Cir. 1985) (internal quotation omitted). The district court found that
Franson delayed for more than sixteen months before seeking relief, and that her
delay made extraordinary equitable relief inappropriate.
The district court did not abuse its discretion in denying relief. A plaintiff’s
delay may justify denial of preliminary injunctive relief where it is not adequately
explained, Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995),
and Franson has not provided a sufficient explanation for her sixteen-month delay.
On appeal, Franson argues that she really did not delay for sixteen months
because the legislature amended the 2023 statute in July 2024. The 2024
amendments, however, altered only the timing and penalty provisions of the statute.
They did not change the statute’s basic prohibition on dissemination of deep fake
videos, the enforcement of which Franson seeks to enjoin. Franson’s proposed
conduct was arguably proscribed and subject to criminal penalties ever since May
2023. She voted for the 2023 law as a member of the legislature and possessed the
complete factual predicate of her suit at that time. The district court found that
Franson disseminated content “as early as 2021” that arguably would be proscribed
by the statute. The court did not err in finding that nothing about the 2024
amendments changed the basis for Franson’s alleged fear that her speech would be
punished under the statute.
Franson disputes this conclusion on the ground that there were no federal
elections in 2023 about which she sought to disseminate deep fake content. But there
were state and local elections during 2023. And Franson, a member of the Minnesota
legislature, alleged without limitation that it was her practice to disseminate “videos
featuring the likeness of real politicians for comedic or satirical effect” to her
“constituents, colleagues, and ideological allies.” The district court did not err in
construing Franson’s claim to encompass content concerning state or local elections.
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Franson contends that delay cannot preclude a finding of irreparable harm
where First Amendment rights are involved. To be sure, the Supreme Court has said
that “[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Roman Cath. Diocese of Brooklyn v.
Cuomo, 592 U.S. 14, 19 (2020) (per curiam) (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976) (plurality opinion)). But the Court also has said that a plaintiff must
generally show “reasonable diligence” in seeking a preliminary injunction, even
where First Amendment rights are allegedly at stake. Benisek v. Lamone, 585 U.S.
155, 159 (2018) (per curiam). Elrod and Roman Catholic Diocese did not concern
a delay in seeking preliminary relief, and those decisions do not undermine the
district court’s ruling here. See Hotchkiss v. Cedar Rapids Comm. Sch. Dist., 115
F.4th 889, 893-94 (8th Cir. 2024); cf. Yoseph v. Sec’y, Fla. Dep’t of Corr., No.
25-10113, 2025 WL 2366445, at *6 (11th Cir. Aug. 14, 2025) (per curiam).
The district court entered its order on preliminary relief in January 2025, and
the case likely could have proceeded toward a final resolution on the merits in the
year that has elapsed since. But Kohls and Franson appealed the order denying
preliminary relief, and then stipulated that the case should be stayed in the district
court pending disposition of this appeal. At oral argument, counsel explained that the
plaintiffs sought “guidance” from the court of appeals on the merits of their
constitutional claims. This court, however, does not sit to dispense guidance on
matters that are unnecessary to a decision.
We conclude here only that the district court did not abuse its discretion in
denying extraordinary preliminary relief in light of the delay in bringing the request.
The purpose of interim equitable relief, where appropriate, is to balance the equities
as the litigation moves forward, Trump v. Int’l Refugee Assistance Project, 582 U.S.
571, 580 (2017) (per curiam), and the district court did not abuse its discretion in
concluding that Franson’s delay weighed definitively against her request.
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In further proceedings, the district court may consider any additional evidence
regarding whether Kohls has standing under Article III and, if there is standing,
whether he is entitled to relief on the merits. The court also may address whether
Franson is entitled to permanent injunctive relief on the merits, despite her delay in
seeking preliminary relief, under the different considerations that apply to the
question of permanent relief. See Denali Summit, LLC v. Union Elec. Co., 158 F.4th
896, 899-900 (8th Cir. 2025).
The judgment of the district court is affirmed.
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