Court Upholds Block On Maryland Political Ad Disclosure Law

A federal appeals court has upheld a block on a Maryland law that requires online publishers to post information about political ad buys.

“While Maryland’s law tries to serve important aims, the state has gone about this task in too circuitous and burdensome a manner to satisfy constitutional scrutiny,” a three-judge panel of the 4th Circuit Court of Appeals said in a ruling issued Friday.

The state's "Online Electioneering and Transparency Act," which took effect last year, requires online news sites, social media services and other platforms with more than 100,000 unique monthly users to post information about political ad purchases on their own websites.

The law also requires the companies to make political ad data available to the state election board. Maryland passed the law 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.

The Washington Post, Baltimore Sun and other newspapers sued to invalidate the measure, arguing that compelling news organizations to post particular information violates the First Amendment.

In January, U.S. District Court Judge Paul Grimm in Maryland prevented the state from enforcing the law against news organizations. He said in a 50-page ruling that laws compelling publishers to post information on their own sites impede 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 that hosted Russian ads, but also to news sites that weren't previously targeted by foreign operatives.

The appellate panel upheld Grimm's decision, ruling that the law was unconstitutional.

“The changing nature of elections and the novel technological challenges accompanying them have made the states’ managerial tasks more difficult,” the judges wrote. “How states choose to carry out their responsibilities has long merited our respect. But that respect has bounds -- and here, Maryland has crossed them.”

The judges noted that the law could have a “chilling effect” on sites' willingness to accept political ads, by effectively imposing costs on companies that accept online political ads.

The judges noted that Google stopped accepting political ads in Maryland after the law went into effect, and that several news publishers said they would also stop running political ads if the law was enforced against news organizations.

“A core problem with Maryland’s law is that it makes certain political speech more expensive to host than other speech because compliance costs attach to the former and not to the latter,” the ruling states. “Accordingly, when election-related political speech brings in less cash or carries more obligations than all the other advertising options, there is much less reason for platforms to host such speech.”

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