355 F. Supp. 3d 272
D. Maryland2019Background
- In May 2018 Maryland enacted the Online Electioneering Transparency and Accountability Act to address foreign interference in elections, particularly via social media and online ads.
- The Act (Md. Code Ann., Elec. Law § 13-405 et seq.) requires covered "online platforms" to (1) publish buyer identity and payment details for qualifying paid digital political communications within 48 hours and keep them public for one year, and (2) retain detailed records (ad copy, dates/times, targeted audience, impressions, geographic reach) and produce them to the State Board on request.
- "Online platform" is broadly defined to include public-facing websites, social networks, ad networks, or search engines with ≥100,000 monthly U.S. unique visitors that accept paid political ads.
- Plaintiffs (major newspapers and a press association) sued, seeking a preliminary injunction as-applied and facially, arguing §13-405 infringes First and Fourteenth Amendment free-speech and press rights; they also raised vagueness, Fourth Amendment, and preemption claims.
- The State defended under campaign-finance disclosure precedents, urging application of Buckley-era "exacting scrutiny" rather than strict scrutiny; Plaintiffs argued strict scrutiny applies because the law compels press speech and is content-based.
- The court granted a preliminary injunction enjoining enforcement of §13-405 and §13-405.1 against the plaintiffs, concluding plaintiffs are likely to succeed on their First Amendment claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Md. Code Ann. §13-405's compelled publication and record-production requirements for online publishers violate the First Amendment | The Act compels the press to speak and publishes state-mandated information on publisher sites; it is content-based and targets the press, so strict scrutiny applies and the statute fails tailoring and least-restrictive-means requirements | The provisions are campaign-finance disclosure rules; Buckley and progeny apply "exacting scrutiny," a less demanding standard, under which the law survives because it advances important interests (transparency, deterring foreign interference and corruption) | Court: strict scrutiny applies (content-based compulsion of press); statute is not narrowly tailored, is over- and under-inclusive, and likely fails strict scrutiny; preliminary injunction granted as to §13-405 and §13-405.1 |
| Whether Buckley-style "exacting scrutiny" governs disclosure obligations imposed on third-party publishers | Plaintiffs: Buckley-exacting-scrutiny regime historically applies to speakers/campaign actors, not to compelled press disclosures; modern precedents (Reed, Becerra) narrow such exceptions, favoring strict scrutiny for content-based compulsion | State: Buckley reasoning applies regardless of which actor is regulated because public interest in disclosure is the same; McConnell and other cases support disclosure-regime review | Court: Buckley exceptions are narrow; Reed and Becerra counsel applying strict scrutiny to content-based compelled speech of the press; exacting scrutiny rejected here |
| Whether the Act is underinclusive or ineffective to combat foreign interference (fit and tailoring) | Plaintiffs: Act targets paid ads on publishers while foreign campaigns primarily used unpaid social media posts and fake accounts; Act lets ad buyers trigger disclosures and allows reliance on buyer-provided info, so bad actors can evade detection | State: Disclosure of ad information and records helps inform electorate and assists enforcement; other interests (deterring foreign money, transparency) justify the law | Court: Act is both overinclusive (sweeps many news sites but evidence shows foreign ads ran mainly on major social platforms) and underinclusive/ineffective (focus on paid ads, relies on buyer notice, permits false info), undermining tailoring requirement |
| Whether preliminary equitable factors favor injunctive relief | Plaintiffs: loss of First Amendment rights causes irreparable harm; balance of equities and public interest support injunction | State: burdens modest; important state interest in combating foreign interference counsels against injunction | Held: Plaintiffs established irreparable harm; balance of equities and public interest favor protecting constitutional rights; injunction warranted |
Key Cases Cited
- Buckley v. Valeo, 424 U.S. 1 (1976) (established disclosure, contribution, and expenditure distinctions and introduced "exacting scrutiny" for disclosure rules in campaign finance)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based speech restrictions are presumptively unconstitutional and subject to strict scrutiny)
- Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010) (applied exacting scrutiny to certain disclosure and disclaimer requirements in campaign finance)
- McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003) (upheld certain campaign-regulation provisions; analysis focused on broadcast regulation history and left standard ambiguous)
- Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974) (government compulsion to publish content infringes editorial freedom of the press)
- National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (rejected expansion of diminished scrutiny categories; confined Zauderer to narrow commercial-disclosure context)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (preliminary injunction standard requires likelihood of success, irreparable harm, balancing of equities, and public interest)
- NAACP v. Alabama, 357 U.S. 449 (1958) (disclosure of association membership can infringe First Amendment associational rights)