• by Wendy Davis , Yesterday

A Washington state law requiring online companies to disclose detailed information about political ads violates the First Amendment, a coalition of groups funded by the tech industry argue to the state's highest court.

The groups argue that the state's Fair Campaign Practices Act hinders online platforms' ability to host political ads, and also suppresses candidates' political speech.

"The state supposedly wishes to promote transparency, but its law promotes only silence," NetChoice, the Chamber of Progress, Computer & Communications Industry Association and TechNet argue in a friend-of-the-court brief filed late last week with the Washington Supreme Court.

The organizations are asking the court to vacate Meta Platforms' $35 million fine for violating the disclosure law.

The new court papers come in a battle dating to 2020, when Washington sued Meta for allegedly failing to comply with a law requiring companies displaying digital ads to make available data about them -- including the ads' cost and sponsors, descriptions of the geolocations and audiences targeted, and the total number of impressions generated.

Governor Bob Ferguson, then attorney general, alleged that Meta sold hundreds of ads to at least 171 Washington state political committees, but failed to make information about the ads available.

King County Superior Court Judge Douglass North sided against Meta, ruling in 2022 that the company violated the state law 822 times, based on evidence that Facebook failed to respond to specific requests for information about political ads. He fined the company $30,000 per violation, for a total of nearly $25 million, and also ordered Meta to pay $10.5 million to the attorney general's office.

Meta appealed, arguing that the law violates the First Amendment by hindering political advertising. The company also said 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 Washington Court of Appeals sided against Meta, essentially holding that the law didn't violate the First Amendment because the measure furthered the “important government interest of informing the electorate in a timely manner about who advertisers are reaching and how advertisers are attempting to influence an election.”

Meta is now asking the state's highest court to reverse that decision.

"The campaign finance law at issue here has made it irrational and unworkable for digital platforms to carry political ads targeting Washington state and local elections," Meta argued in recent court papers.

"Major platforms have banned these ads as a result," Meta writes. "The law tips the scales against disempowered political actors who need low-cost but effective digital advertising to communicate with voters. And the State has failed to justify that result under the First Amendment."

The company also told the court that the ads in the case says "sometimes earned Meta as little as a dollar, while exposing Meta to massive liability."

Meta adds that because the law doesn't require ad buyers to notify platforms about political ads, "unauthorized ads sometimes slip through" its screening process.

NetChoice and the other groups make a similar argument, arguing that the law "shuts down an entire channel for core political speech and diminishes the voice of its citizens in Washington elections."

Washington's attorney general defended the law, arguing "serves important governmental interests by providing voters information that educates them about their votes."

The attorney general adds that the law's disclosure requirements "have never been more important, as foreign actors and others aggressively spread election disinformation through microtargeted and ephemeral digital media."