Electioneering Law Will Curb Political Ads, Newspapers Say

"The Washington Post," "Baltimore Sun" and other newspapers are urging a federal appellate court to continue blocking a new Maryland electioneering law that requires news sites to post information about political ads.

The newspapers say Maryland has no grounds to “commandeer” their pages by forcing them to run additional information. The publishers add that the law could result in fewer political ads altogether.

“Google has already ceased running Maryland political ads, and, if the Act were permitted to be enforced against publishers ... at least some of them will be forced to do the same,” the publishers argue in papers filed late last week with the 4th Circuit Court of Appeals.

The "Online Electioneering and Transparency Act," which took effect July 1, applies to operators of online news sites, social media services and other platforms with more than 100,000 unique monthly users. The measure requires those companies to post -- on their own websites -- information about political ad buys, and to make records available to the state election board. Maryland passed the law after it emerged that Russian operatives purchased ads on Google, Twitter and Facebook, in order to interfere with the 2016 U.S. presidential election.



Shortly after the law took effect, Google said it would stop accepting political ads in Maryland.

The Post and other papers sued to block the law last year, arguing that several of its provisions violated the First Amendment, including the provision compelling news organizations to post information about political ad purchases and to make records available to state inspectors.

U.S. District Court Judge Paul Grimm in Maryland sided with the publishers and blocked the state from enforcing the law against news organizations.

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.”

He also said the statute was too broad, because it applies not only to the large social media platforms on which the Kremlin previously purchased ads, but also to news sites that weren't targeted by foreign operatives.

Maryland officials recently appealed that ruling to the 4th Circuit, arguing that the government has a legitimate interest in preventing foreign interference in elections, and in “electoral transparency.”

The newspapers counter that Grimm correctly “recognized that regulations commandeering the pages of a newspaper to communicate messages dictated by the government are presumptively unconstitutional.”

They also argue that a law centered on paid ads won't address Russian interference in elections, given that much of the prior Russian-operated online campaigns involved unpaid posts on social media.

The publishers add that Maryland's law interferes with their ability to exercise editorial control by requiring them to post certain information. “Not only does compelling publication of factual information violate the First Amendment, but laws dictating what a newspaper must publish are a serious interference with editorial independence,” they argue.

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