The Washington Post v. David McManus, Jr., 944 F.3d 506

Background

In 2018 Maryland enacted the Online Electioneering Transparency and Accountability Act to address perceived foreign meddling and gaps in online campaign disclosure.
The Act requires "online platforms" (sites with >=100,000 monthly U.S. visitors that accept qualifying paid political ads) to publish within 48 hours and retain for one year certain purchaser-identifying information and ad data, and to keep records for state inspection.
Publishers (including The Washington Post and several Maryland newspapers) challenged the platform-specific publication and inspection requirements as violating the First Amendment and obtained a preliminary injunction from the district court.
The district court applied heightened scrutiny (it favored strict scrutiny but also found the law failed exacting scrutiny) and enjoined enforcement as applied to the Publishers.
On appeal the Fourth Circuit affirmed, holding the Act imposes content-based, compelled-speech burdens on platforms and the press and fails exacting scrutiny because it is both under- and over-inclusive and not sufficiently tailored to Maryland’s interests.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Act is a content-based regulation of speech	The Act singles out campaign-related content and therefore is content-based	The law is a disclosure regime aimed at transparency, not content discrimination	Court: Act is content-based and targets political speech, triggering heightened scrutiny
Whether the Act unlawfully compels speech by platforms/newspapers	Forcing publishers to post and retain third-party political ad data compels speech and burdens editorial autonomy	Disclosure is factual, modest, and limited to ads publishers already accepted	Court: Publication and inspection provisions are compelled speech that intrude on editorial choice and anonymity protections
Whether applying disclosure to neutral third-party platforms is permissible	Plaintiffs: Platform-focused burdens are distinct and chill channels for political speech, leading platforms to refuse political ads	State: Platforms are appropriate disclosure surrogates and analogous to regulated broadcasters/ad carriers	Court: Platform-based regime poses unique First Amendment harms (market manipulation, chilling) and is not justified by broadcast analogies
Whether applying the Act to news media (press) is justified	Publishers: Applying to the press raises special First Amendment concerns and lacks evidentiary support	State: Prophylactic regulation is warranted to prevent possible foreign use of publisher ad networks	Court: Maryland failed to show concrete evidence of foreign-paid ads on news sites; prophylactic intrusion into press is unjustified
Whether the Act is narrowly tailored / substantially related to government interests	Plaintiffs: Act is both under- and over-inclusive and not narrowly tailored to deter foreign interference or serve secondary disclosure interests	State: Important interests (prevent foreign interference, inform voters, enforce laws) justify the disclosures; some overlap with existing rules is acceptable	Court: Under exacting scrutiny the Act fails—it leaves major mechanisms of interference unaddressed, but burdens many innocuous sites and press outlets, so the fit is unreasonable

Key Cases Cited

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content-based regulation triggers heightened scrutiny)
Buckley v. Valeo, 424 U.S. 1 (1976) (exacting scrutiny for disclosure laws requires substantial relation to important interests)
Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (disclosure burdens differ for direct political participants)
Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based laws are presumptively unconstitutional)
Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995) (compelled inclusion alters speaker’s message)
Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974) (government cannot compel editorial content)
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (First Amendment protects anonymous political advocacy)
Branzburg v. Hayes, 408 U.S. 665 (1972) (press confidentiality and limits on compelled disclosure to government)
Reno v. ACLU, 521 U.S. 844 (1997) (internet is a wide-open forum not analogous to broadcast scarcity)
Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) (broadcast regulation justified by spectrum scarcity—distinguishable)
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (cable carriage analysis and limits of compelled carriage analogies)
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (heightened scrutiny for content- and speaker-based restrictions)
McCutcheon v. Fed. Election Comm’n, 572 U.S. 185 (2014) (fit and tailoring required even under aggregate contribution limits)
Bartnicki v. Vopper, 532 U.S. 514 (2001) (government must show more than speculative harms to justify speech burdens)
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (compelled disclosure of membership lists can chill association and speech)