• by Wendy Davis  @wendyndavis, August 11, 2023

A Washington state law requiring online companies to release detailed information about political ads to the public violates the First Amendment, the tech policy organizations NetChoice, Chamber of Progress and TechNet argue in new court papers.

The organizations are urging a Washington appellate court to reverse a ruling by King County Superior Court Judge Douglass North, who ruled that Meta Platforms violated the law and fined the company nearly $25 million.

The state measure, which was passed in November of 2018, requires companies displaying digital ads to make available a host of detailed information about them -- including the ads' cost and sponsors, descriptions of the geolocations and audiences targeted, and the total number of impressions generated.

Meta, which is appealing North's ruling, says in court papers filed in April that it attempted to ban all political advertising in the state, but that “some users chose to ignore the ban and ran those ads anyway.”

The company also argues to the state Court of Appeals that the law violates the First Amendment and is overriden by Section 230 of the Communications Decency Act, which immunizes companies from liability for users' posts.

The Attorney General's office countered in papers filed in June that the law “serves important governmental interests of providing voters access to information that could educate them about their votes and preventing corruption in Washington elections.”

NetChoice, Chamber of Progress and TechNet contend in their friend-of-the-court brief contend that the law violates the First Amendment, in part because it effectively bans online political ads in the state.

The groups argue that Meta and other platforms can't realistically comply with the law, because it doesn't require political advertisers to notify the platforms about political ads, or to provide platforms with information about the ads.

“It is anything but undisputed that platforms have error-free automated means of obtaining real-time knowledge of all Washington candidates, ballot propositions, and related ads. Without that impossible omniscience, platforms cannot comply,” the groups write.

“Several leading platforms -- including Meta, Google, and Yahoo -- have endeavored to avoid violating the law by banning Washington state political ads,” the groups add. “Whatever the state’s supposed interest, the First Amendment does not permit Washington to pursue that interest through an overbroad law that shuts down an entire channel for core political speech and diminishes the voice of its citizens in Washington elections.”

The legal battle dates to 2020, when Washington state Attorney General Bob Ferguson sued Meta for allegedly violating the disclosure law by selling hundreds of ads to at least 171 Washington state political committees, but failing to make information about the ads available.

North found that Meta violated the transparency law 822 times, based on evidence that Facebook failed to respond to specific requests for information about political ads. He then fined the company $30,000 per violation.

Meta was previously prosecuted for allegedly violating an earlier version of Washington's campaign finance law. The company settled that earlier case in 2018, when it agreed to pay $200,000 and also said it would stop accepting political ads in the state.

Ferguson alleged in the subsequent lawsuit that Facebook violated its earlier promise.

“Notwithstanding its announced policy to no longer accept political advertisements for Washington elections, Facebook continued to accept or provide political advertising for election campaigns in Washington State after November 30, 2018,” Ferguson alleged in the 2020 complaint.

Meta argues to the appellate court that it tried to block political ads in Washington, but that “some ads slipped through the ban and made it onto Meta’s services” due to the self-service nature of its ad platform.

The company also says the ruling should be reversed on the theory that the disclosure law is unconstitutional.

“Unlike every other disclosure law that the Supreme Court has endorsed, this law imposes those burdens not on political speakers or candidates, but on digital platforms that display and disseminate political speech,” the company wrote in its appellate papers.

Meta added that in 2019 a federal appellate court struck down a Maryland law that would have required 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.