Newspapers Sue Over Electioneering Disclosure Law

BALTIMORE (CN) – The Washington Post and seven other newspapers sued Maryland Friday over the state’s implementation of a law requiring greater disclosure about the buyers of online political ads.

The Maryland state legislature passed the Online Electioneering Transparency and Accountability Act last winter in response to revelations about Russian interference in the 2016 U.S. election, which included targeted advertisements on Facebook paid for with Russian currency. New York and Washington state also have reacted with laws requiring detailed disclosures about the buyers of online political ads, but Maryland’s law is the strictest, going so far as to ban foreign money from being used to pay for political ads.

“However well-intentioned, this law is unconstitutional in a host of ways,” attorney Seth Berlin, who represents the newspapers, said in an email. “It compels newspapers to speak, regulates far more speech—and speakers—than necessary, is filled with vague provisions that are impossible to follow, and allows courts to issue prior restraints on newspapers.”

In June, Google announced that it could not comply with the law and so would no longer accept political advertisements in Maryland.

Back then, Maryland Board of Elections Campaign Finance Director Jared DeMarinis, working on the rule-making process for the new law, told the Baltimore Sun that he had been seeking input from companies that would be affected in hopes of making the Maryland regulations a national model. Facebook told the newspaper it was on board with the law.

But newspapers were not. The regulation will require platforms with more than 100,000 monthly visitors to publish the names and contact information for any purchaser of a “qualifying paid digital communication,” along with the price paid – but this is duplicative of information the elections board already collects, according to the 28-page complaint.

The law also requires that the newspapers maintain a publicly available database identifying the candidate or ballot issue to which the ad relates, the dates and times when the ad was first and last published, a copy of the ad, an “approximate description of the audience that received, or was targeted to receive, the communication; and…[t]he total number of impressions generated by the communication.”

The newspapers say the regulations are too broad, adding that, “[a]s an initial matter, there is no evidence that any newspaper website in Maryland unwittingly published advertising surreptitiously placed by foreign nationals to disrupt the 2016 election.”

The complaint also pegs the law as too vague, in that it defines a "qualified paid digital communication" as "campaign material" and defines "campaign material" to include "qualified paid digital communications," making it “impossible for on-line platforms who wish to host political speech, including Publisher Plaintiffs, to know what is and is not subject to regulation.”

But the newspapers could nonetheless face prosecution or be barred from running political ads if they violate the law.

“There is perhaps no more well-established principle in the firmament of First Amendment law than the prohibition against such prior restraints,” the complaint says.

The law also contravenes the Communications Decency Act of 1996, the newspapers say, which “provides an immunity for on-line publishers of third-party created content, including advertisements, and pre-empts state legislation to the contrary.”

Even Maryland State Delegate Sandy Rosenberg, who worked on the bill, held the final law at arm’s length.

“I was not the lead sponsor of the bill that passed,” he said in an interview. “I think had the press raised these concerns earlier in the process than they did then we might have been able to address them. The meeting I attended was, I believe, the last week of the session. The sentiment was that it was too late to make changes.”

Maryland Governor Larry Hogan also expressed misgivings about the bill when it reached his desk, but did not veto it, allowing it to slide into law without his signature.

His office did not respond to a message requesting comment.

“Regardless of what happens in the lawsuit,” Rosenberg said, “I would hope there would be a discussion next session—timely discussions—to address these concerns.”

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