Last year, amid the outcry over Russian online operations during the 2016 election, the Maryland legislature reacted by passing a law imposing disclosure and compliance burdens on social media providers and newspapers that accept online advertising. Now, in a victory for freedom of the press, a federal judge has blocked enforcement of key provisions of the state’s Online Electioneering Transparency and Accountability Act. The decision provides a reminder that lawmakers should not allow panics over “bad” kinds of speech to undermine basic freedoms protected by the First Amendment.
The Maryland law as a whole tightened regulations on “campaign materials,” broadly defined to include online and physical material that “relates to a candidate, a prospective candidate or the approval or rejection” of either an actual or a “prospective” ballot measure. The specific provisions that gave rise to the challenge required larger online platforms, such as Facebook, Google, and many daily newspaper websites, to collect and publish information from advertisers that place such materials.
In particular, the platforms would be required to publish within 48 hours on their sites in searchable form a record of who had bought political ads and what they had paid, and would need to make available to the state election board for inspection on demand considerably more detail concerning each ad, including a digital copy of the ad itself, which candidate or question it related to and whether it was for or against, when it had run, what its planned or actual target audience was, and how many impressions of it had been served. Some of the ideas here mimicked the ways federal regulation requires broadcasters to maintain a public inspection file of what they have broadcast on public issues.
Among those testifying for the bill, the Campaign Legal Center declared the bill a “well-crafted and constitutional” way to advance “greater accountability for online platforms” and said it “should serve as a model for other states.” The Brennan Center said “voluntary efforts are not enough” and favored provisions even tougher than those of the draft bill.
By contrast, Eric Wang of the Institute for Free Speech called the public file rule “likely unconstitutional” and pointed out that the U.S. Court of Appeals for the Ninth Circuit had found a Nevada law with some similar provisions to be improperly overbroad. And Gov. Larry Hogan, citing constitutional problems as well as protests from the state’s newspaper association, declined to sign the bill, which became law anyway.
Major newspapers in the state promptly sued and on January 3 federal judge Paul W. Grimm granted them a preliminary injunction barring the state from enforcing the provisions, ruling against the state on almost every point. He observed that although federal courts under Buckley v. Valeo had upheld some restrictions on candidates, political committees and donors, all of whom were actors seeking to influence election outcomes, they had never approved using campaign law to regulate third-party media outlets or publishers. (Broadcast cases aren’t a relevant exception because courts have long handled them under a less speech-protective regime ultimately traceable to notions of scarce public airwaves.)
Maryland’s rule, the judge wrote, would fail whether examined under either strict scrutiny or the somewhat more relaxed alternative known as exacting scrutiny. The provisions were decidedly overbroad in controlling activity unrelated to the law’s aims, nor were they the least restrictive means of attempting to get foreigners seeking to sway U.S. elections to identify themselves. Significantly, the provisions did not just mandate speech in the form of obligatory disclosures, but directly impinged on press freedoms themselves, with unpredictable effects. For example, because the required disclosures might furnish competitors with valuable information about a platform’s ad rates and viewer reach, some online platforms might find it more appealing simply to begin turning down political and issue ads as a category.
Social media trickery is bad. Chipping away at First Amendment liberties to stop it is worse.