BALTIMORE (CN) – A federal judge delivered a devastating blow Friday to a Maryland law aimed at preventing foreign interference in state elections, enjoining elections officials from enforcing it at all while a challenge by a group of newspapers plays out in court.
“I conclude that Plaintiffs’ First Amendment claim is likely to succeed on the merits,” U.S. District Judge Paul W. Grimm wrote in a 50-page opinion. “This conclusion stems from my determination that the Act’s impositions on online publishers are subject to strict scrutiny and that they most likely would not withstand this form of judicial review.”
“We are very pleased with the court’s thoughtful and well-reasoned decision,” said Seth Berlin of Ballard Spahr, who represents the Washington Post, Baltimore Sun and other publications that challenged the law in August. “While the judge recognized that combating foreign influence in our elections is important, he correctly ruled that this statute was both an ineffective and unconstitutional way of doing so.”
The Maryland Legislature passed the Online Electioneering Transparency and Accountability Act in 2017; it became law without Gov. Larry Hogan’s signature.
The law requires 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.
It also requires that the news organizations 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.”
Some of the information the law demands is proprietary, such as how many people the ads reached. Much of the rest, the judge found, is duplicative.
The judge praised the Legislature, saying it “should be commended, not criticized for attempting to address this threat.”
But the judge said the state erred in seeing the law as purely an election law—subject to “exacting scrutiny” under First Amendment jurisprudence—and not a direct regulation of speech which under “strict scrutiny” must be narrowly tailored to its purpose.
While the state does have a compelling interest in safeguarding its elections from foreign influence and making sure election expenditures are publicly transparent, Grimm said it failed to craft the law to fit those objectives.
“It is not that the Act promises no benefits whatsoever,” the judge wrote. “Here, though, the publication and state inspection requirements appear ill suited to their missions in at least three ways: first, they are duplicative of other campaign finance disclosure requirements; second, they do not target the deceptive practices the Act ostensibly seeks to deter; and, third, they are poorly calibrated to prevent foreign operatives from evading detection.”