• by Wendy Davis , April 15, 2019

A recent Maryland law requiring online publishers to disclose information about political ads is justified by the state's goal of preventing foreign interference in elections, and enforcing campaign finance measures, Attorney General Brian Frosh argues in new court papers.

A federal district judge recently blocked the portion of the law that applies to news publishers, ruling that the requirements violate the papers' First Amendment rights to decide what information to post. But Frosh argues in papers filed Friday with the 4th Circuit Court of Appeals that any impingement on the newspapers' First Amendment rights is justified by the state's goal of enforcing election laws.

“The State has a strong interest in electoral transparency, deterring corruption, enforcing substantive campaign finance requirements, and preventing foreign meddling in its elections,” the Attorney General argues. “These interests are also commensurate with the modest First Amendment burdens imposed.”

Frosh makes the argument as part of an effort to convince the appellate court to reinstate Maryland's "Online Electioneering and Transparency Act," an electioneering law passed in response to revelations that Russian operatives purchased ads on Google, Twitter and Facebook in order to interfere with the 2016 U.S. presidential election.

That law, which took effect July 1, applies to online news sites, social media services and other platforms with more than 100,000 unique monthly users. The measure requires those platforms to post -- on their own websites -- information about political ad buys, and to make records available to the state election board.

U.S. District Court Judge Paul Grimm in Maryland partially blocked the measure earlier this year, after The Washington Post, Baltimore Sun and other Maryland-area newspapers sued over the law. The newspapers argued the law violated the First Amendment by requiring them to post particular information online.

Grimm wrote it was “evident” that campaign finance disclosure laws imposing burdens on the media implicate the First Amendment's guarantee of freedom of the press. He added that laws compelling publishers to post information on their own sites are particularly problematic, describing them as “treading on their First Amendment-protected interest in controlling the content of their publications.”

Frosh also argues the law is necessary due to the growth of internet advertising. The state argues that online advertising has undermined enforcement of old electioneering laws, in part because officials used to rely on complaints about ads. Those complaints are now less likely to occur, according to the Attorney General, due to online ad targeting.

“The targeted delivery of ads over the Internet ... has allowed advertisers to select their audience with increasing precision, such that those who might have complained about an ad in the past no longer even see the ad now,” the state argues. “Moreover, while federal law requires television and radio broadcasters to make public their records relating to requests for broadcast time by candidates or their agents, there is no analogous requirement for online advertising. Thus, as political advertising moved online and away from traditional platforms, regulators’ ability to enforce campaign finance and disclosure laws diminished.”

The newspapers are expected to file their court papers next month.