Maryland’s Online Political Ad Law Debated in Fourth Circuit

RICHMOND, Va. (CN) – Maryland’s effort to regulate online political ads was met with skepticism by a Fourth Circuit judge Wednesday, as a state attorney defending against a challenge by The Washington Post and other newspapers argued the law doesn’t violate digital publishers’ right to free speech.

The Fourth Circuit Court of Appeals building in Richmond, Virginia. (Photo via Acroterion/Wikimedia)

Passed last year, the Online Electioneering Transparency and Accountability Act did not get the signature of Republican Governor Larry Hogan. It went into effect thanks to a veto-proof majority but was quickly challenged by a group of newspapers and blocked by a federal judge who found it would impose undue burden on publishers.

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, and also requires them to maintain a publicly available database with relevant information about the ad.

Provisions of the law, which was passed to address concerns from foreign interference in the 2016 elections, match many requirements currently in place for broadcast and print media outlets.

But at Wednesday’s hearing in the Richmond, Virginia-based appeals court, U.S. Circuit Judge J. Harvie Wilkinson zeroed in on who is actually burdened with generating information about the ad buyer and their political links under the law.

Maryland Assistant Attorney General Andrea Trento tried to argue the law did not impact the “editorial independence” of online publishers but instead put them on par with other news outlets.

Wilkinson, a Ronald Reagan appointee, was not swayed.

The judge harped on the idea of publishers being a neutral party as only the disseminator of the ad. He wondered if asking them to account for and publish additional information around campaign ad buys was too burdensome, and if the requirement differed from current TV and print laws because those require reporting by the purchaser, or non-neutral party.

“I don’t understand what limiting principle there is when regulation can be applied on a neutral party,” the judge asked.

While Wilkinson admitted the burdens imposed by the current law might be innocuous, he was unsure what approving them now would open the door to later.

“Trying to stop [foreign influence] with regulation of political speech, the most treasured speech in a democracy….turns the First Amendment on its head,” he said.

But U.S. Circuit Judge Henry Floyd, a Barack Obama appointee, pushed back some on this theory. He suggested online publishers were not neutral because they had chosen to accept political ads.

Trento attached himself to this theory and argued the publishers wanted it both ways.

“They are participating in the marketplace of political speech,” he said, arguing they are both publishing the speech while saying regulation will burden their editorial freedom.

He also stressed others courts’ understanding of the importance of crediting political ad buys.

“All campaign donation reports are content burdens,” he argued. “If you’re spending money on political speech, you need to report it.”

But Wilkinson pushed back on that too.

“They play a role in disseminating political speech into the public so they can make an informed choice,” the judge said.

When Seth D. Berlin, an attorney with Ballard Spahr who argued on behalf of the publishers, began his oral arguments, Wilkinson did offer some support to Maryland’s efforts.

“Dark money is concerning, disclosure is a disinfectant,” he said. “Do we not want to add to the fund of information made with disclosures?”

Berlin agreed, but argued the sections of the law that aren’t burdensome were duplicitous to campaign finance laws already on the books.

He argued political campaigns must report what they spend to the state board of elections, which in turn makes that information available online. Asking online platforms to also publish this information, he suggested, would harm smaller publishers without the means to financially support such an endeavor.

“I have clients who say it will be very expensive to comply,” he said, before arguing the rest of the law is overly broad.

“It’s belts and suspenders, you need a better, narrow tailored fit,” Berlin added, comparing the law to a business suit. If it requires such accessories, it is too big to get the job done, he said.

U.S. Circuit Judge Diana Gribbon Motz, a Bill Clinton appointee, rounded out the three-member panel. The judges did not say when a ruling would be handed down.

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