STATE OF WASHINGTON, Respondent, v. META PLATFORMS, INC., formerly doing business as FACEBOOK, INC., Petitioner.
No. 103748-1
SUPREME COURT OF THE STATE OF WASHINGTON
JUNE 18, 2026
EN BANC
On review in this court, Meta argues that (1) the ruling on liability should be reversed because the FCPA and its implementing regulations violate the First Amendment to the United States Constitution as applied, (2) the penalty calculation should be reversed because it is based on a misinterpretation of the relevant statutes, and (3) the penalty should be reversed because it violates the excessive fines clause of the Eighth Amendment to the United States Constitution.
As to the first issue, in the lead opinion, three justices (Justice Whitener, Chief Justice Stephens, and Justice Pro Tempore Yu) would apply exacting scrutiny, uphold the FCPA as applied, and affirm the ruling on liability. In the opinion concurring in part and dissenting in part, three justices (Justice Mungia, Justice González, and Justice Montoya-Lewis) would apply deferential scrutiny, uphold the FCPA as applied, and affirm the ruling on liability. In the dissenting opinion, three
As to the second issue, the three-justice lead opinion would affirm the penalty and hold that the trial court correctly interpreted and applied the relevant statutes by counting each advertisement included in a request as a separate violation. The three-justice concurrence/dissent would reverse the penalty and hold that the number of violations should be based on the number of advertisements, regardless of the number of requests that were made for the same information. The three-justice dissent would hold that the trial court correctly interpreted the relevant statutes but does not join the lead opinion in affirming the penalty. As a result, there is no majority view to affirm or reverse on this issue and the judgment stands affirmed.
As to the third issue, the three-justice lead opinion would affirm the penalty and hold that it does not violate the excessive fines clause of the Eighth Amendment, assuming without deciding that the Eighth Amendment applies in this case. The three-justice concurrence/dissent joins the lead opinion on this issue, assuming without deciding that the Eighth Amendment applies. The three-justice dissent would reverse the penalty and hold that it violates the excessive fines clause of the
Accordingly, the Court of Appeals’ opinion is affirmed with respect to liability and the penalty judgment stands affirmed by a divided court.
STATE OF WASHINGTON, Respondent, v. META PLATFORMS, INC., formerly doing business as FACEBOOK, INC., Petitioner.
No. 103748-1
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
En Banc
Meta Platforms Inc., one of the wealthiest corporations in the world, controls platforms like Instagram, Facebook, WhatsApp, and Messenger. Billions of people across the globe consume content posted on Meta‘s platforms every day, including countless advertisements chosen specifically for them using “microtargeted advertising” based on their demographic information and browsing habits.
In this case, Meta asks this court to find the FCPA as applied to them is burdensome and violates their right to free speech as protected by the First Amendment to the U.S. Constitution. We hold that it does not.
FACTUAL AND PROCEDURAL BACKGROUND
This action concerns 12 separate requests for records from three members of the public: Eli Sanders, Tallman Trask, and Zach Wurtz. Clerk‘s Papers (CP) at 256-64. Meta does not dispute that its response to the requests for records violated the disclosure law. CP at 5859-63. The Attorney General‘s Office filed a complaint in King County Superior Court in April 2020 and later amended it to include additional charges. CP at 1-16, 247-69. Following discovery, both parties moved for summary judgment in July 2022. CP at 379-412, 413-44. The superior court granted the State‘s motion for summary judgment. CP at 5571-79.
The disclosure law authorizes up to $10,000 in penalties for each violation, plus legal costs.
Meta argued to the Court of Appeals that the disclosure law violates the federal First Amendment and section 230 of the Communications Decency Act. Am. Appellant‘s Opening Br. at 19-60 (Wash. Ct. App. No. 84661-2-I (2023)). It further argued that the superior court‘s method of calculating damages was based on an improper reading of the statute because it authorizes a penalty only for each request Meta does not respond to, not each advertisement included in those requests. Id. at
Meta, the parent company of social media sites Facebook, Instagram, and other platforms, sells advertising space to individuals and organizations. CP at 5858-59. Meta does not dispute that as a “digital communications platform” and a “commercial advertiser” it is subject to the disclosure law.
In December 2018, Meta received a $200,000 penalty for failing to respond fully to two requests under Washington‘s disclosure law. CP at 26-28. Shortly after, Meta announced it would no longer accept advertisements in Washington State that related to “candidates, elections or ballot initiatives.” CP at 615. According to Meta, the disclosure law is so burdensome that there is no economic incentive to carry political advertisements in the state. Suppl. Br. of Pet‘r at 10. However, such advertisements have continued to appear on Meta platforms since the ban. CP at 5859, 5937-38, 5974, 6010-11, 6015, 6025-26.
In 2018, Meta created an “Ad Library” to comply with disclosure laws in multiple jurisdictions. CP at 606-07, 7008, 7305-06. The “Ad Library” is a free tool that allows anyone to view information about advertisements hosted on Meta platforms that concern “social issues, elections, or politics.” CP at 7007-08. Available information may include approximate price and audience size, expressed as a percentage or range. Id. Information is added to the library within 24 hours of an advertisement‘s first impression, updated regularly, and retained for 7 years. CP at 5910, 7305-06. Here, neither party disputes that much of the information required by Washington‘s disclosure law is included in Meta‘s Ad Library, but not all. CP at
ISSUES
- Do the FCPA (
former RCW 42.17A.345 ) and its implementing legislation (WAC 390-18-050 ) together violate the First Amendment to the U.S. Constitution? - Did the superior court err by calculating Meta‘s penalty based on each advertisement for which it failed to disclose the required information?
- Did the superior court‘s civil penalty violate the Eighth Amendment to the U.S. Constitution?
ANALYSIS
Standard of Review
We review summary judgment decisions de novo. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is appropriate if “there is no genuine issue as to any material fact and … the moving party is entitled to a judgment as a matter of law.”
We review questions of law, including constitutional issues, de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012). Questions of statutory interpretation are also reviewed de novo. Tingey v. Haisch, 159 Wn.2d 652, 657, 152 P.3d 1020 (2007); State v. Valdiglesias LaValle, 2 Wn.3d 310, 317, 535 P.3d 856 (2023). The court‘s goal in interpreting a statute is to “ascertain and carry out the Legislature‘s intent, and if the statute‘s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Dep‘t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). The first step in statutory interpretation is to determine the statute‘s plain meaning, based on the text, context, related provisions, and the statute as a whole. State v. Haggard,
1. The FCPA does not violate Meta‘s First Amendment right to free speech
The purpose of Washington‘s FCPA, which dates back to 1972, is to ensure that “political campaign and lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided.”
The legislature finds that timely and full disclosure of election campaign funding and expenditures is essential to a well-functioning democracy in which Washington‘s voters can judge for themselves what is appropriate based on ideologies, programs, and policies. Long-term voter engagement and confidence depends on the public knowing who is funding the multiple and targeted messages distributed during election campaigns.
The legislature also finds that recent events have revealed the need for refining certain elements of our state‘s election campaign finance laws that have proven inadequate in preventing efforts to hide information from voters. The legislature intends, therefore, to promote greater transparency for the public by enhancing penalties for violations; regulating the formation of, and contributions between, political committees; and reducing the expenditure thresholds for purposes of mandatory electronic filing and disclosure.
In 2018, the Public Disclosure Commission (PDC), the regulatory body charged with enforcing the FCPA, enacted
- A description of the demographic information;
- The statistical characteristics of a population (e.g., age, gender, race, location, etc.), of the audiences targeted and reached, to the extent such information is collected by the commercial advertiser as part of its regular course of business;
- The total number of impressions generated by the advertisement or communication; and
- Any generative adversarial network techniques, artificial intelligence, or other digital technology, provided by the commercial advertiser to produce any ‘synthetic media,’ as defined under [
former RCW 42.62.020 (2023) ], for the advertisement or communication.
Regarding disclosure of the records, the 2018 updates further state:
Until such time as the PDC provides an open access platform on its website for this information, which will replace the following methods of inspection for all required information, such information must be available for public inspection by any person, and provided:
(a) In person during normal business hours; or
(b) Electronically, in machine readable format and structured in a way that enables the data to be fully discoverable and useable by the end user:
(i) By digital transmission, such as email, promptly upon request, but no later than two business days; or
(ii) By online publication in one of the following formats:
(A) On the advertiser‘s primary website; or
(B) On a website controlled by the advertiser, created for purposes of publishing the information required by this section, if a link is prominently displayed on the advertiser‘s primary website directing users to the website on which the information is provided.
Prior to the 2018 additions, Meta was already subject to the FCPA under
[e]ach commercial advertiser who has accepted or provided political advertising or electioneering communications during the election campaign shall maintain current books of account and related materials … that shall be open for public inspection during normal business hours during the campaign and for a period of no less than five years after the date of the applicable election.
Information required under this provision includes the names of parties who purchase political advertisements, plus the cost, manner of payment, and “the exact nature and extent of the services rendered.”
Campaign finance disclosure laws “can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley v. Valeo, 424 U.S. 1, 64, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). However, they remain a “less
The U.S. Supreme Court has repeatedly recognized the important role that disclosure laws play in informing voters about how money is spent to influence elections, finding that exacting scrutiny strikes the appropriate balance between upholding the First Amendment while pursuing the goal of election transparency. Buckley, 424 U.S. at 76 (upholding required disclosure of campaign contributions “to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to corruption and undue influence possible“); Citizens United, 558 U.S. at 371 (upholding disclosure requirements for campaign advertisements because “disclosure permits citizens and shareholders to react to the speech of
Meta argues that because Washington‘s “content-based” disclosure law restricts platforms rather than candidates or lobbyists, it must satisfy strict scrutiny to be constitutional. Suppl. Br. of Pet‘r at 8, 10; see Reed v. Town of Gilbert, 576 U.S. 155, 163-64, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). Meta essentially asks for an exception or a change to the exacting scrutiny rule specifically for advertising platforms. It claims that disclosure laws applied to platforms are more likely to suppress speech than disclosure laws aimed at political actors because political actors wish to “‘succeed at the ballot box‘” and are unlikely to curtail their speech in the face of disclosure laws, while economically motivated platforms will choose not to carry political advertising at all if disclosure obligations are too costly. Suppl. Br. of Pet‘r at 10 (quoting Wash. Post v. McManus, 944 F.3d 506, 516 (4th Cir. 2019)).
Neither the Washington nor the U.S. Supreme Courts have previously determined which standard of review should apply to a political advertising disclosure law directed at a social media platform. In McConnell v. Federal Election Commission, the U.S. Supreme Court applied exacting scrutiny to a disclosure law aimed at broadcasters. 540 U.S. 93, 237-38, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) (overruled in part on other grounds by Citizens United, 558 U.S. 310). The McConnell Court upheld the law because the Federal Communications Commission
The rationale behind exacting scrutiny has always been that disclosure laws are “a less restrictive alternative to flat bans on certain types or quantities of speech,” allowing the government to pursue the important goal of informing voters without banning anyone from speaking. McCutcheon, 572 U.S. at 223. The courts do not have a history of carving out exceptions based on the type of actor sharing the speech, and voters benefit just as much from disclosure laws applied to platforms as they do from disclosure laws applied to candidates. This is true even when an entity voluntarily adjusts its business decisions to account for any costs associated with compliance. The disclosure law may impact Meta‘s motivation to host political speech, but it does not prevent Meta from hosting the political speech, and Meta‘s business decisions should not dictate the appropriate standard of review. Even if
The concurrence/dissent argues that deferential scrutiny, not exacting scrutiny, is the applicable standard of scrutiny here because Meta‘s transactions with advertisement purchasers are commercial speech. Concurrence/dissent at 10-11. However, “[i]n reviewing the trial court‘s decision, we confine ourselves to the issues the parties have raised and which the trial court considered.” Babcock v. State, 116 Wn.2d 596, 606, 809 P.2d 143 (1991). “We may not speculate upon the existence of facts that do not appear in the record.” State v. Blight, 89 Wn.2d 38, 46, 569 P.2d 1129 (1977). Neither Meta nor the State discussed deferential scrutiny in their briefs or at oral argument. Therefore, we will not address whether deferential scrutiny is appropriate in this case.
In addition, the FCPA satisfies exacting scrutiny as it requires “‘a substantial relation between the disclosure requirement and a sufficiently important governmental interest.‘” John Doe No. 1, 561 U.S. at 196 (internal quotation marks omitted) (quoting Citizens United, 558 U.S. at 366-67). Furthermore, the disclosure
Meta suggests “the State has failed to establish that less speech-suppressive alternatives would not work to advance its stated interest,” and therefore the law must fail exacting scrutiny.7 Suppl. Br. of Pet‘r at 20. This misrepresents Americans for Prosperity, which specifically states that the law need not “be the least restrictive means of achieving [the government‘s] ends.” 594 U.S. at 608. While it is possible to identify alternative measures Washington could take to inform voters without inconveniencing Meta, that alone is insufficient to find that the law fails exacting scrutiny.
Furthermore, none of those alternative options are sufficient to provide full transparency as contemplated by the FCPA.
No alternative option provides voters with the same scope of information as the disclosure law. The legislature reasonably concluded that the law as is best serves the FCPA‘s goal of transparency. As the State explains, “Our federalist system of government contemplates differences between states’ laws,” and the fact that other states have taken different approaches “does not make Washington‘s law ‘dubious,’ nor is there anything suspect about the overriding importance Washington voters
The “vital provision of information repeatedly has been recognized as a sufficiently important, if not compelling, governmental interest.” Hum. Life, 624 F.3d at 1005-06. The State describes its “important governmental interest” as “achieving election integrity and transparency by requiring timely and detailed information disclosures about political ads, facilitating an informed electorate.” Suppl. Br. of Resp‘t at 13-14. Meta does not dispute that this is an important state interest, but it does challenge both the substantial relationship and narrow tailoring prongs of the exacting scrutiny analysis. Suppl. Br. of Pet‘r at 13-14.
The State argues that the disclosure law is substantially related to voter education because “[i]nformation about sponsorship, targeting, and reach inform voters about an ad‘s intent, meaning, and impact, including if the ad intends to mobilize or demobilize through tactics like fear mongering or misinformation.” Suppl. Br. of Resp‘t at 14; see also CP at 6344-59. According to one expert, the public can properly evaluate the meaning and impact of a political advertisement only by knowing who paid for it, what its content is, and who it targets. CP at 6348.
To satisfy the final step of an exacting scrutiny analysis, the disclosure law must “be narrowly tailored to the government‘s asserted interest.” Ams. for Prosperity, 594 U.S. at 608. Here, the FCPA is narrowly tailored because only Meta can provide all relevant information related to political advertising on its platforms. Meta makes four primary arguments as to why the disclosure law is so overly burdensome as to fail exacting scrutiny. Suppl. Br. of Pet‘r at 12-22. First, the State can, and in some cases already does, obtain the desired information from other parties. Id. at 14. Second, Meta received only a few disclosure requests from members of the public. Id. at 7, 18. Third, the law disincentivizes platforms from hosting political advertisements, which leads to the sharing of less political information. Id. at 10, 15-17. Fourth, the State has not shown it is technically
First, Meta argues the FCPA requirement results in redundant disclosure. It may be true that much, though not all, of the information Meta is required to disclose must also be disclosed by the campaigns or groups that purchase political advertisements. Meta, 33 Wn. App. 2d at 162. However, as one expert explained, the platforms have information the purchasers do not, including demographic information, so applying the disclosure law to Meta yields information not otherwise available to the public. CP at 6366-68; see also Resp‘t‘s Answer to Amici Curiae Brs. at 29-30 (“When a particularly impactful or controversial political ad is observed, the FCPA‘s recordkeeping requirements for commercial advertisers allow the public and media to rapidly access detailed information about that ad from where it was seen or heard rather than having to wait until the next reporting deadline and a potential report that will include only the information available to the sponsor.“). Despite two years of discovery, Meta has not offered sufficient evidence to show that advertisers alone could provide the same information required of Meta. In addition, the State is allowed to require both parties to a transaction to disclose overlapping information, even if other parties could disclose the same data. In fact,
Second, Meta highlights that in this case, three individuals made a total of 12 requests for political advertising information. CP at 256-64. Meta asserts that two of the individuals made the requests solely to test Meta‘s compliance and that a third made requests to support a consulting business. Suppl. Br. of Pet‘r at 7; CP at 38-50, 5241, 7580-82. Meta argues that this type and level of use shows that the law is not substantially related to the goal of informing voters. However, this argument is unconvincing, given that journalists and academics may disseminate information widely even if they submit only one request. Meta, 33 Wn. App. 2d at 162.
Third, suggesting it would be “financially irrational” to host political advertisements while the disclosure law is in place, Meta banned political advertisements in Washington in 2018.8 Pet. for Rev. at 2; CP at 615-16. Meta characterizes its decision as evidence that the law subverts, rather than serves, the State‘s interest in increasing access to political information. Suppl. Br. of Pet‘r at 15-16; see also Pet‘r‘s Answer to Amicus Curiae Brs. at 8-9 (“Meta and other major platforms had no realistic choice but to ban Washington political advertising on their services.“). Candidates, particularly those with fewer resources, may be impacted by
Meta repeatedly cites Washington Post, in which the Fourth Circuit Court of Appeals struck down a Maryland law that required platforms, including newspapers, to disclose the purchaser and price of political advertisements displayed on their websites.10 944 F.3d at 514; Suppl. Br. of Pet‘r at 20. The Fourth Circuit based their holding in part on their conclusion that Maryland‘s law discouraged online newspapers from selling political advertising space. Wash. Post, 944 F.3d at 515. However, the Washington Post court expressly limited their holding to news outlets and did not wish to “expound upon the wide world of social media and all the issues that may be pertinent thereto.” Id. at 513.
The State counters that “Meta chose not to comply with the FCPA because it was inconsistent with its own stated priorities—not because the law is overly burdensome.” Suppl. Br. of Resp‘t at 19; see also Resp‘t‘s Answer to Amici Curiae Brs. at 37. The superior court agreed, concluding that “‘the only reason why Meta refuses to comply with the law is, to put it colloquially, they don‘t want to let the
Meta‘s ban on advertising is self-imposed and does not impact this court‘s exacting scrutiny analysis. Enforcing disclosure requirements is an essential tool the State has available to educate and keep the public informed about how billions of dollars are spent to influence their votes. The State cannot account for internal corporate decisions. Therefore, some platforms may choose to reject political advertisements because they decide it is not in their interest to comply with the requirements of the FCPA. Meta‘s argument that the disclosure law reduces the amount of political speech available to the public misconstrues the purpose of the disclosure law, which is to facilitate election transparency, not to ensure a proliferation of political advertisements. FCPA is a disclosure requirement, and “disclosure requirements may burden the ability to speak, but they … ‘do not prevent anyone from speaking.‘” Citizens United, 558 U.S. at 366 (quoting McConnell, 540 U.S. at 201). Here Meta, not the State, chose to foreclose advertising opportunities for candidates.
Finally, whether to consider compliance costs as applied to this type of platform and, if we do so, how it is to be applied are issues of first impression for us. Meta does not dispute that it already collects the required information in its
Here, the State‘s expert estimated that including a Washington-specific region in Meta‘s Ad Library would cost around $200,000, an overall “very inexpensive route” that would be “comfortably within Meta‘s capabilities.”12 CP at 6501, 6498, 6495. In response, Meta‘s expert witness stated in his report that “complying with the Washington Disclosure Law is not as simple or straightforward” as the State‘s experts alleged, explaining that it would be challenging for Meta to identify every political advertisement and would require ongoing human review. CP at 7859; see also Br. of NetChoice et al. as Amici Curiae in Supp. of Pet‘r at 18-23. Additionally,
The superior court found that “Meta failed to provide evidence to create a genuine issue of material fact regarding its inability to comply, whereas the State presented sufficient evidence explaining both how and why Meta could comply.” CP at 5575. The Court of Appeals agreed, finding that “[a]fter years of discovery, we know nothing more about the burden on Meta than high level, even ‘speculative,’ generalities that lack the ‘specificity’ to create a genuine issue of material fact.” Meta, 33 Wn. App. 2d at 173-74. We also agree.
The dissent finds that Meta‘s general statements about the difficulties of compliance are sufficient to create a genuine issue of material fact, dissent at 22, but to overcome summary judgment, it is for Meta to “set forth specific facts which sufficiently rebut” the State‘s claims. Meyer, 105 Wn.2d at 852 (emphasis added). Meta has failed to do so. After more than two years of discovery, Meta has failed to provide specific details about what compliance with Washington‘s FCPA would actually cost, and its expert did not attempt to quantify the resources needed to
Meta‘s ability to comply with our FCPA and its claimed burdens and costs associated with compliance are vague and inconclusive only because Meta failed to provide necessary information that would allow our courts to meaningfully evaluate its claimed burden. Under the facts of this case, there is no genuine issue of material fact. Meta concedes that it can comply with the FCPA. Any issues of material facts regarding its burden are totally within Meta‘s control and exist because of Meta‘s refusal to clarify the details of that burden. Meta has complied with similar laws in other jurisdictions yet has failed to disclose requested information required by the FCPA. CP at 5861-62. Washington‘s FCPA disclosure requirement is narrowly tailored, and Meta has failed to prove that it is unduly burdensome. Accordingly, the disclosure law satisfies exacting scrutiny.
“A person who violates any of the provisions of [the FCPA] may be subject to a civil penalty of not more than ten thousand dollars for each violation.”
The superior court imposed the maximum penalty of $10,000 per violation, granted attorney fees and costs, and trebled all damages.14 CP at 5791-93, 5814-17. It counted each advertisement included in a request as a separate violation. Id. To reach the total number of 822 advertisements, the court counted advertisements requested by the first two individuals, a total of 411, then doubled that number to account for the third individual‘s broad request.15 CP at 5574, 5791-93. The total
The FCPA is intended to be “liberally construed” to allow for maximum disclosure, and a per-advertisement calculation is best aligned with that objective.
We find the superior court‘s calculation of damages based on the number of advertisements where Meta failed to disclose the required information is correct and best supports the legislative intent. The legislature intends maximum disclosure, and to support this position every advertisement is subject to the disclosure requirements.
(4) Until such time as the PDC provides an open access platform on its website for this information, which will replace the following methods of inspection for all required information, such information must be available for public inspection by any person, and provided:
(a) In person during normal business hours; or
(b) Electronically, in machine readable format and structured in a way that enables the data to be fully discoverable and useable by the end user:
(i) By digital transmission, such as email, promptly upon request, but no later than two business days; or
(ii) By online publication in one of the following formats:
(A) On the advertiser‘s primary website; or
(B) On a website controlled by the advertiser, created for purposes of publishing the information required by this section, if a link is prominently displayed on the advertiser‘s primary website directing users to the website on which the information is provided.
The FCPA contains a “Declaration of Policy.” The legislature‘s purpose in enacting the law is “[t]hat political campaign and lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided.”
Meta is correct that this procedure means the State will have no opportunity to assess a penalty until a request is made. However, under Meta‘s interpretation, the failure to disclose information related to 1 advertisement in response to one request will receive the same penalty as the failure to disclose information related to 100 advertisements sought in one request. Resp‘t‘s Suppl. Br. at 25-26. This interpretation is unpersuasive because each advertisement that is not disclosed deprives voters of relevant information about how and by whom campaign finance dollars are spent.
The disclosure law clearly and repeatedly promotes maximum disclosure of campaign finance information. It creates a right of “public inspection by any person,”
[O]ur courts, in a variety of different but related settings, have reiterated the Washington‘s campaign finance laws’ intent to ensure full disclosure of individual records. … These statements of intent do not rely on the voter prompting or availing themselves of such transparency.
Furthermore, the statute permits up to $10,000 in penalties per violation, but the trial judge has considerable discretion in determining a penalty and is authorized to consider multiple factors, such as a history of compliance, available resources, and good faith efforts.
The Eighth Amendment prohibits “cruel and unusual punishments,” which includes a prohibition against “excessive fines.”
The penalty assessed to Meta here is not excessive as it is not “grossly disproportional” to the gravity of Meta‘s offense. First, Meta is a sophisticated, well-resourced platform that willfully violated the FCPA after previously being held
In GMA, this court upheld an $18 million penalty against a trade group that failed to file required disclosure reports and funneled $11 million through a “strategic account” with the purpose of sheltering political donors from disclosure requirements. 198 Wn.2d at 894. The dissent distinguishes this case from GMA by giving Meta credit for disclosing at least the purchaser and cost of advertisements via its Ad Library. Dissent at 43. However, Meta‘s disclosure of the cost and the identity of the purchaser does not necessarily decrease the severity of the infraction. The disclosure law seeks to shed light on the methods Meta uses to disseminate political advertisements, specifically through microtargeting, and Meta‘s limited
The second and third Bajakajian factors are not relevant here as neither side argues that Meta‘s activities relate to other legal violations or that other penalties (save for an injunction) may be imposed.21
Meta argues that the fourth Bajakajian factor, the “extent of the harm,” is limited only to the three individuals whose requests went unfulfilled. Suppl. Br. of Pet‘r at 30-31. In GMA, this court emphasized the importance our disclosure law places on transparency and how the trade group‘s conduct directly flouted that purpose. The GMA reasoning is applicable here. Meta did not outright hide the identity of political contributors, but its repeated failures to disclose required
Finally, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” Bajakajian, 524 U.S. at 336. The legislature here authorized a $10,000 maximum per violation and the trebling of all damages, and the superior court within its discretion sustainably imposed the penalty. Accordingly, the amount of the penalty did not violate Meta‘s federal Eighth Amendment rights.
CONCLUSION
We affirm the Court of Appeals.
Whitener, J.
Stephens, C.J.
Yu, J.P.T.
State v. Meta
No. 103748-1
I concur with the lead opinion that there is no First Amendment violation here.
I dissent from the lead opinion‘s conclusion as to what constitutes “each violation” under the statute. “Each violation” is not what Meta Platforms Inc. asserts: that “each violation” is limited to each request for information, regardless of the number of advertisements covered by that request. Nor is “each violation” calculated as the lead opinion says: by compounding per-advertisement violations by the number of requests for the same information.1 Instead, the statute imposes a penalty for Meta not making certain information available about each advertisement. Accordingly, the violation is limited to just that: each advertisement with undisclosed information.
I
THE FAIR CAMPAIGN PRACTICES ACT REQUIRED META TO KEEP AND MAKE AVAILABLE TO THE PUBLIC FACTS ABOUT POLITICAL ADVERTISEMENTS HOSTED ON ITS PLATFORM
The Fair Campaign Practices Act (FCPA) required Meta to keep and make available to the public certain facts about each political advertisement it hosted on its platform.
- The street address of the individual sponsor that paid for the advertisement;
- The payment dates, payment methods, and exact cost per advertisement;
- The targeted audience; and
- The number of impressions per advertisement.
From 2019 to 2021, three individuals requested information about political advertisements that Meta displayed in Washington State: Eli Sanders (two separate requests), Tallman Trask (one request), and Zach Wurtz (nine separate requests).
- 254 separate 2019 advertisements displayed by Meta were responsive to the 2019 Sanders and Trask requests.
- At least 157 separate advertisements displayed by Meta were responsive to Sanders’ 2021 request.
- At least 411 advertisements were responsive to Wurtz‘s July 2021 requests, which it found by counting all the same advertisements that were covered by the other requests.
The trial court found a violation for each advertisement where Meta did not provide the required information, calculating 411 separate advertisements with undisclosed information. In addition, the trial court found a violation occurred each time a person asked for the required information about a particular advertisement. The trial court then double counted the same 411 advertisements that went undisclosed between the separate requests, concluding there was a total of 822 violations. The trial court fined Meta $10,000.00 for each violation and, as allowed by statute, trebled the fines. Accordingly, the court imposed a civil penalty of $24,660,000.00 and entered an additional $10,522,159.59 in attorney fees and costs.
THE FCPA‘S DISCLOSURE REQUIREMENTS REGULATE COMMERCIAL SPEECH THAT DOES NOT INVOLVE ASSOCIATIONAL RIGHTS. ACCORDINGLY, THIS COURT SHOULD REVIEW THE STATUTE USING DEFERENTIAL, NOT EXACTING, SCRUTINY
We review constitutional questions de novo. State v. Grocery Mfrs. Ass‘n, 195 Wn.2d 442, 456, 461 P.3d 334 (2020). At issue is whether the disclosure requirements violate Meta‘s First Amendment rights.3 The First Amendment to the United States Constitution protects freedom of speech and freedom of assembly. Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 605, 141 S. Ct. 2373, 210 L. Ed. 2d 716 (2021). The protections for speech apply to noncommercial and commercial speech. Chong Yim v. City of Seattle, 194 Wn.2d 651, 677, 451 P.3d 675 (2019). However, the First Amendment provides less protection to commercial speech than it does to noncommercial speech. Id. at 677-78. This dispute involves the State‘s regulation of commercial speech.
When reviewing governmental regulation of speech, courts apply varying standards of review ranging from strict to deferential depending on the type of speech involved. Generally, regulations that burden content-based speech, like restrictions on
A. Exacting Scrutiny Applies When Reviewing Disclosure Requirements That Burden Associational Rights
When a government regulation requires the disclosure of facts that may also burden associational rights, then courts review those regulations under an exacting scrutiny standard. Ams. for Prosperity, 594 U.S. at 616 (“Exacting scrutiny is triggered by ‘state action which may have the effect of curtailing the freedom to associate,’ and by the ‘possible deterrent effect’ of disclosure.” (quoting Nat‘l Ass‘n for Advancement of Colored People v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958))). While these types of regulations burden speech, they are subject to a less-than-strict scrutiny because they “‘do not prevent anyone from speaking‘” and “‘impose no ceiling‘” on associational activities. Citizens United, 558 U.S. at 366 (quoting McConnell v. Fed. Election Comm‘n, 540 U.S. 93, 201, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003), overruled in part on other grounds by Citizens United, 558 U.S. 310); Buckley v. Valeo, 424 U.S. 1, 64, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). However, exacting scrutiny is still a heightened standard of review. A regulation survives exacting
There are numerous examples of courts applying exacting scrutiny to election-related disclosure and disclaimer requirements that burden associational rights. See, e.g., Buckley, 424 U.S. at 63-64 (law requiring political committees and candidates to keep detailed records and make reports providing personal identifying information of their campaign contributors, subject to public inspection and copying); Citizens United, 558 U.S. at 366-71 (law requiring those funding televised electioneering communications to include a clear disclaimer of who is responsible for the content, and also requiring them to file disclosure statements with the Federal Election Committee identifying who made the expenditures and to which election the communication was directed); Doe v. Reed, 561 U.S. 186, 196, 130 S. Ct. 2811, 177 L. Ed. 2d 493 (2010) (Washington law compelling disclosure of signatory information on referendum petitions); Hum. Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1005 (9th Cir. 2010) (Washington law requiring an entity to disclose information about its sponsorship of political advertisements and make certain reports); Grocery Mfrs. Ass‘n, 198 Wn.2d at 461 (Washington law requiring a trade association requiring it to disclose who made contributions to it); State v. Evergreen Freedom Found., 192 Wn.2d 782, 798-99, 432 P.3d 805 (2019) (campaign finance disclosure requirement imposed on entities providing pro bono legal services to support election efforts). These cases highlight that exacting scrutiny applies when
Before the United States Supreme Court began using the term “exacting scrutiny,” the Court consistently applied this type of heightened scrutiny to safeguard associational freedoms that were burdened as a result of compelled disclosure requirements. As the Court stated:
It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute . . . [an] effective . . . restraint on freedom of association . . . . This Court has recognized the vital relationship between freedom to associate and privacy in one‘s associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.
Nat‘l Ass‘n for Advancement of Colored People, 357 U.S. at 462.
In sum, exacting scrutiny does not automatically apply whenever the government requires the disclosure of facts relating to political information. Instead, the disclosure requirement must also burden associational freedoms. See Voters Educ. Comm. v. Pub. Disclosure Comm‘n, 161 Wn.2d 470, 482, 166 P.3d 1174 (2007) (“[C]ompelled disclosure may encroach on First Amendment rights by infringing on the privacy of association and belief.” (citing Buckley, 424 U.S. at 64)).
Accordingly, depending on whether a disclosure regulation infringes on associational rights, a court‘s level of review may be deferential instead of exacting.
Our level of review for commercial speech depends on whether the government regulation restricts commercial speech or merely requires an entity to provide factual disclosures. Chong Yim, 194 Wn.2d at 678.
In contrast to laws burdening associational rights, laws requiring commercial speakers to provide purely factual disclosures are generally subject to deferential review. “[I]f the law merely requires factual disclosures by commercial speakers, review is deferential because a person‘s ‘constitutionally protected interest in not providing any particular factual information in [their] advertising is minimal.‘” Id. (quoting Zauderer v. Off. of Disciplinary Couns., 471 U.S. 626, 651, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1985)).
The deferential scrutiny inquiry asks whether the disclosure requirements are reasonably related to the State‘s interest in preventing the deception of consumers. Id. Even then, if the restriction is unjustified or unduly burdensome, it cannot survive deferential review. Id.
The Zauderer Court applied deferential review to a state‘s regulation of attorney advertising. The regulation required attorneys who advertised that their fees were contingent to provide information that clients were responsible for litigation costs. Zauderer, 471 U.S. at 650-51. The Court reasoned that the law did not prohibit commercial speakers from conveying any information to the public but, instead, “only
We have followed this reasoning in reviewing similar factual disclosure requirements imposed on commercial actors. For instance, in Chong Yim, we applied deferential review to a requirement that landlords provide facts about their rental criteria to prospective tenants. 194 Wn.2d at 679. The requirement survived deferential review because it was directly connected to the city‘s interest in ensuring the same rental criteria applied to all applicants, combating bias in Seattle‘s rental housing market. Id. at 679-80. We emphasized that landlords were required to disclose only the rental criteria that they set for themselves. The regulation imposed only a minimal burden on landlords and allowed landlords to exercise their free speech rights in other ways. Id. at 680.
Recently, the Supreme Court in Moody v. NetChoice, LLC, 603 U.S. 707, 144 S. Ct. 2383, 219 L. Ed. 2d 1075 (2024), suggested that the deferential review standard from Zauderer applies to government regulations imposed on social media platforms that require them to disclose certain information to their users. The Court‘s opinion illuminates how social media disclosures fit into the commercial speech context.
In NetChoice, the Court reviewed circuit court decisions surrounding the constitutionality of Florida and Texas laws imposing speech-related requirements on social media platforms. Those two states adopted regulations requiring social media platforms to disclose to affected users their reasoning for removing content. NetChoice, LLC v. Att‘y Gen., Fla., 34 F.4th 1196, 1230 (11th Cir. 2022), vacated and remanded sub
Following these decisions, the NetChoice Court reviewed the First Amendment facial challenges to the various laws. The Court did not decide whether the laws violated the First Amendment. Instead, the Court provided guidance regarding the applicable standards of review. The NetChoice Court suggested Zauderer‘s deferential review was the standard for reviewing the individualized-explanation provisions. NetChoice, 603 U.S. at 725.
The regulations at issue here are similar to the individualized-explanation requirements at issue in NetChoice. Washington‘s FCPA provisions require social media platforms to disclose facts about the content it hosts on its platform for the purpose of informing users of its operations. Therefore, the deferential standard of review is the correct standard to apply here.
Because the FCPA does not burden associational rights, and instead only regulates the disclosure of facts related to platforms’ content, this court should review the provisions under a deferential standard.
The lead opinion applies exacting scrutiny because the disclosure requirements are election-related.4 However, while exacting scrutiny often applies in reviewing election-related disclosure requirements, this level of review does not apply merely because the disclosure requirement is election related. As discussed above, associational rights must also be burdened.
Associational rights were burdened in all the leading election-related cases that applied exacting scrutiny. In Buckley, the Court applied exacting scrutiny in reviewing the Federal Election Campaign Act‘s disclosure provision requiring political committees to keep detailed records of contributions and expenditures. 424 U.S. at 64 (“[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of
In Citizens United, exacting scrutiny applied when a nonprofit organization that funded a campaign video challenged laws that required those who funded electioneering communications to disclose their identities. 558 U.S. at 319, 366. The organization argued that such disclosure requirements could chill donations to an organization and cause its members to face retaliation by making their support publicly known. Id. at 370.
This court also applies exacting scrutiny where disclosure requirements burden associational freedoms. In Grocery Manufacturers Association, a trade association challenged Washington‘s FCPA disclosure and registration requirements after it failed to disclose which of its members contributed financially to a political committee. 195 Wn.2d at 448. Exacting scrutiny applied because the regulation burdened the group‘s associational freedoms by requiring it to make disclosures about its supporters. Id. at 461 (“‘[C]ompelled disclosure may encroach on First Amendment rights by infringing on the privacy of association and belief.‘” (quoting Voters Educ. Comm., 161 Wn.2d at 482)).
In contrast to all these cases, the disclosure requirements here do not burden Meta‘s, the challenger‘s, associational freedoms. Although the FCPA requirements may relate to political or election advertisements, that alone does not trigger exacting scrutiny.
Instead, the disclosure laws here merely require a commercial platform to disclose facts related to its commercial services—hosting paid advertisements on its sites.
In sum, the FCPA and its implementing legislation deal with factual disclosures in the commercial speech context. Just because the advertisements relate to elections does not mean that exacting scrutiny is the correct standard of review. Instead, because associational rights are not burdened here, deferential review applies, just like in other commercial speech disclosure cases.
I concur with the lead opinion that the requirements would survive even under a heightened standard of review. However, the State does not need to meet this higher burden.
III
META ADMITS THAT IT VIOLATED THE FAIR CAMPAIGN PRACTICES ACT. ACCORDINGLY, IT IS SUBJECT TO PENALTIES FOR “EACH VIOLATION”
Meta agrees that it violated the FCPA. Suppl. Br. of Pet‘r at 2, 22, 25. However, Meta challenges the way the trial court calculated damages.
Meta argues that when a person makes a request, that request, no matter how many advertisements it is seeking information for, will result in only one violation. That does not follow the legislative intent manifested in the statutory scheme.
This statute requires Meta to keep certain information about each political advertisement that it runs. A violation occurred each time Meta failed to make available all the required information for any particular advertisement. Under Meta‘s view, the penalty would be the same whether the request seeks information for a single advertisement or 100. This goes against the statutory scheme, which is intended to promote transparency surrounding political advertisements. The legislature intended that certain information be publicly available for each advertisement. As the Court of Appeals stated, and with which the lead opinion agrees, the statutory scheme shows an “intent to preserve and sunlight relevant data of each individual ad . . . without any requirement that any particular voter or the government step into the sunlight to inspect
The lead opinion views it differently. It holds that the total number of violations is calculated by multiplying the number of advertisements with undisclosed information by the number of requests for that information. Lead opinion at 33. The legislature could have included language that would have resulted in imposing penalties per request, but it did not. Instead, the legislative scheme requires social media platforms to make information available for each political advertisement. A failure to make that information publicly available results in one violation for each advertisement, regardless of the number of requests for that same information.
The lead opinion argues that the legislature intended the statute to be liberally construed to provide for maximum disclosure. That is true. However, a liberal construction does not allow us to exceed the legislature‘s intent. Indeed, the legislative intent behind the penalty provision is to maximize the disclosure of information, not to maximize the penalty amount. Therefore, the court should not strain to construe the provision to maximize penalties. As discussed above, calculating violations per advertisement, instead of per request, is in line with a liberal construction of the provision.
While I disagree with the lead opinion‘s conclusion that the trial court properly calculated the penalties, I agree that the judgment of $35,182,159.59 is not an excessive
IV
CONCLUSION
The Fair Campaign Practices Act required Meta to maintain and make publicly available facts about advertisements hosted on its platform. Meta, an entity that has experience with public disclosure requirements and has the resources to ensure that it complies with disclosure laws, intentionally failed to make available the following information about the political advertisements it ran:
- The street address of the individual sponsor that paid for the advertisement;
- The payment dates, payment methods, and exact cost per advertisement;
- The targeted audience; and
- The number of impressions.
The disclosure of this information does not burden Meta‘s associational rights nor does it burden the associational rights of those paying for the political advertisements. Because this is commercial speech that does not burden associational rights, we should apply a deferential, not exacting, standard of review. However, even applying the exacting standard of review, I agree with the lead opinion that there is no First Amendment violation.
The FCPA requires that a social media platform must make certain information available to the public regarding political advertisements. When a social media company
I accordingly would affirm the trial court‘s conclusion that there is no First Amendment violation but reverse on the amount of penalties it imposed. I instead would direct it to calculate violations based on each advertisement for which Meta failed to transparently disclose required information.
Mungia, J.
González, J.
Montoya-Lewis, J.
State v. Meta Platforms, Inc.
No. 103748-1
GORDON McCLOUD, J. (dissenting)
In this case, all parties agree that the FCPA serves an important or even compelling state interest: shedding light on Washington state campaign funding and
I disagree. I would remand to the trial court for fact-finding on the competing proof that the two sides have offered about the FCPA‘s burdens.
The lead opinion then turns to the sanction. The Eighth Amendment bars the State from imposing monetary sanctions that are grossly disproportionate compared to the illegal conduct.5
Again, I disagree. Under controlling Supreme Court precedent on the application of the Eighth Amendment to reporting violations, we must consider Meta‘s conduct at a concrete level of specificity, not a high level of generality about societal values. Here, Meta committed partial reporting violations combined with broad disclosure of other requested information and no allegations of other, underlying illegalities. That does not support the highest penalty ever imposed for partial violations of administrative reporting rules in the history of this state or this country.7
I therefore respectfully dissent.
I. THE FCPA AND THE 2018 REGULATION
The FCPA requires a “commercial advertiser” who has “accepted or provided political advertising or electioneering communications during the election campaign” to “maintain current books of account and related materials as provided by rule.”
The legislature delegated the task of adopting regulations to implement and enforce the FCPA to the Public Disclosure Commission (PDC).
In 2018, the PDC updated that regulation to specify that digital communication platforms that host political advertisements count as “commercial advertisers.”
At the time of the requests in this case, those “work components or tasks” included (for digital communication platforms like Meta) “[a] description of the demographic information (e.g., age, gender, race, location, etc.) of the audiences targeted and reached, to the extent such information is collected by the commercial advertiser as part of its regular course of business, and the total number of impressions generated by the advertisement of communication.”
The regulation also provides detailed requirements about how commercial advertisers must keep their current books of account and related materials open for public inspection. Both the current and former versions require that this information
II. META BANS WASHINGTON POLITICAL ADVERTISEMENTS IN 2018
Prior to the updated regulation, Meta hosted Washington political advertisements on its platforms. Meta contends that “digital advertising on platforms like Facebook is especially important for smaller campaigns that lack the resources to reach voters through more expensive and traditional means.” Clerk‘s Papers (CP) at 399.
Despite the ban, political advertisements have appeared on Meta platforms since 2018 in violation of Meta‘s policy. “Meta uses multiple levels of both automated and human review to block prohibited ads in Washington.” CP at 393. However, “because Facebook uses a self-service advertising portal, unauthorized ads sometimes slip through Facebook‘s screening processes.” Pet. for Rev. at 9 (citing CP at 7452).
III. META CREATES AD LIBRARY IN 2018, WHICH DISPLAYS SOME BUT NOT ALL OF THE INFORMATION REQUIRED TO BE DISCLOSED BY THE FCPA
In 2018, Meta launched a publicly accessible “Ad Library.” It provides certain information about ads relating to “social issues, elections, or politics” across multiple jurisdictions. CP at 7007-08. As the lead opinion notes, “neither party disputes that much of the information required by Washington‘s disclosure law is included in Meta‘s Ad Library, but not all.” Lead opinion at 5 (citing CP at 5859-60). Specifically, the Ad Library does not include “street addresses of sponsors, exact
Meta concedes that it collects and maintains all that information in its regular course of business. Suppl. Br. of Pet‘r Meta Platforms, Inc. at 25. However, as discussed below, it disputes the State‘s assertion that it would be simple and inexpensive to alter the Ad Library to display all that information or to individually gather the information in response to individual requests.
IV. THREE INDIVIDUALS REQUEST INFORMATION ABOUT WASHINGTON POLITICAL ADS HOSTED ON META; PDC INVESTIGATES
This case concerns a total of 12 requests for records made by three members of the public. In February 2019, journalist Eli Sanders requested information relating to four Seattle city council races and a ballot measure. CP at 256. In July 2019, Tallman Trask requested information about advertising relating to numerous Seattle political campaigns and city council candidates. CP at 8067. In July 2021, Sanders requested all information for all Washington political ads hosted by Meta from January 1 to July 12, 2021. CP at 7587. Sanders and Trask filed complaints with the PDC when Meta failed to timely and completely comply with their requests. CP at 256-57.
In April 2020, the State sued Meta for violating the FCPA by failing to disclose the political ad information requested by Sanders and Trask. CP at 1. The State amended the complaint when it learned that between 2019 and 2021, another member of the public, Zach Wurtz, had made nine requests for information about a variety of Washington political ads from Meta. CP at 425. Wurtz‘s final request asked “‘to inspect the public file for every political ad shown in Washington State since 2016.‘” CP at 5574. Meta failed to timely and completely comply with the requests. CP at 258.
V. SUPERIOR COURT GRANTS SUMMARY JUDGMENT IN FAVOR OF STATE
Both parties moved for summary judgment. In October 2022, the trial court granted the State‘s motion for summary judgment and denied Meta‘s motion for summary judgment. CP at 5571.
The trial court entered judgment in favor of the State. CP at 5783. It imposed the maximum statutory penalty of $10,000 per violation on each violation, then trebled that total under
On appeal, Meta argued that the FCPA and its implementing regulations violate the First Amendment as applied to Meta; that the superior court erred in interpreting the statute to permit the imposition of a penalty for each advertisement included in the requests, rather than a penalty for each request; and that the fine was
ANALYSIS
I. GENUINE ISSUES OF MATERIAL FACT PRECLUDE SUMMARY JUDGMENT ON THE FIRST AMENDMENT ISSUE, REGARDLESS OF WHETHER STRICT OR EXACTING SCRUTINY APPLIES
Meta argues that the disclosure requirements imposed by the FCPA and its implementing regulations (together, the “disclosure law“) violate its First Amendment rights. It argues that the court must apply strict scrutiny to its First Amendment claim because the disclosure law is a content-based regulation that targets political speech. Meta also argues that the existence of genuine issues of material fact related to the extent of the law‘s burden on its First Amendment rights made summary judgment inappropriate.
The lead opinion disagrees. It adopts exacting scrutiny as the correct standard to evaluate Meta‘s First Amendment claim.
Meta is probably correct that strict scrutiny applies to its First Amendment claim, as discussed below. But even if exacting scrutiny applies, the lead opinion
I would therefore reverse the trial court‘s decision to grant summary judgment to the State.
A. The lead opinion does not meaningfully consider the distinctions between disclosure laws that target political speakers and disclosure laws (like the FCPA) that target neutral third-party platforms (like Meta); the latter place far more burdens on speech, are more suspect, and hence must be subject to strict scrutiny (the more speech-protective standard)
Meta argues that the disclosure law is subject to strict scrutiny because it is a content-based regulation of speech: it applies only to political speech. Reed v. Town of Gilbert, 576 U.S. 155, 165, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015) (“A law that is content based on its face is subject to strict scrutiny regardless of the government‘s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993))). To
The lead opinion disagrees that strict scrutiny is appropriate. It holds that exacting scrutiny—a less speech-protective standard—applies because the law is a campaign-related disclosure law that does not burden speech that much. To survive exacting scrutiny, the State must show that the law (1) bears a substantial relation to a sufficiently important government interest and (2) is narrowly tailored to accomplish that interest. Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 611, 141 S. Ct. 2373, 210 L. Ed. 2d 716 (2021). Under exacting scrutiny, the narrow tailoring requirement requires a “‘reasonable‘” fit between the State‘s interest and the means used to accomplish that interest, though it need not be the “‘least restrictive means‘” of achieving the state‘s important interest. Id. at 609-10 (internal quotation marks omitted) (quoting McCutcheon v. Fed. Election Comm‘n, 572 U.S. 185, 218, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014) (plurality opinion)). This means-
Thus, the costs and burdens of compliance with a law are highly relevant to determining whether the law is narrowly tailored to achieve an important government interest. Smith v. Helzer, 95 F.4th 1207, 1217 (9th Cir. 2024) (considering the financial and time-based burdens of a disclosure law on campaign contributors as part of the exacting scrutiny narrow tailoring requirement), cert. denied sub nom., Smith v. Stillie, 145 S. Ct. 567 (2024). And when the regulated entity is a business, the way the costs and burdens of the law affect the entity‘s business decisions are naturally relevant to considering the law‘s means-end fit.
To be sure, both the United States Supreme Court and this court have applied the exacting scrutiny standard to other campaign finance disclosure laws. E.g., Buckley v. Valeo, 424 U.S. 1, 63, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (campaign finance law required political committees and candidates to disclose information); Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 366 (2010) (campaign finance law required political action committees to disclose information); State v. Grocery Mfrs. Ass‘n, 198 Wn.2d 888, 893, 502 P.3d 806 (2022) (GMA II) (FCPA requires candidates and political committees to disclose campaign finance information). As the lead opinion recognizes, the Supreme Court
But none of those decisions analyzed campaign finance-disclosure laws that targeted third-party platforms that host political ads, like Meta does (as opposed to targeting the candidate or the campaign). And, as the lead opinion acknowledges, neither the United States Supreme Court nor this court has decided what level of scrutiny applies to this situation. Lead opinion at 14.
The lead opinion adopts the exacting scrutiny standard for this new situation without really grappling with the distinctive burdens the FCPA places on the targeted platform or the speech-chilling effects it has on the platform and its potential users. But those considerations are important—under controlling precedent, the extent of the law‘s burden on free speech basically determines the level of scrutiny the law must receive. Buckley, 424 U.S. at 67-68 (considering speech-chilling effect of campaign finance disclosure law on campaign contributors); Ams. For Prosperity, 594 U.S. at 610 (considering extent to which law requiring charities to report top donors to state attorney general had potential speech-chilling effect on donors); see also Collier v. City of Tacoma, 121 Wn.2d 737, 752, 854 P.2d 1046 (1993) (in analyzing whether yard sign regulation violated state constitutional free speech protections, court considered that the regulation tended to benefit the well-known incumbent at the expense of “[t]he underfunded challenger … who relies on the inexpensive yard sign to get his message before the public“).
Given the critical importance of the extent of the law‘s burden on free speech to determining the applicable standard of scrutiny, we must pay careful attention to the fact that the FCPA and its implementing regulation are not ordinary campaign finance disclosure laws. As the Fourth Circuit Court of Appeals explained in Washington Post v. McManus, “While ordinary campaign finance disclosure requirements do not ‘necessarily reduce[] the quantity of expression,’ the same cannot be said for platform-based laws.” 944 F.3d 506, 517 (4th Cir. 2019) (alteration in original) (citation omitted) (quoting Buckley, 424 U.S. at 19).
Washington Post dealt with a Maryland campaign finance disclosure law that, like the instant law, applied to third-party platforms.13 The Fourth Circuit declined
In short, the Washington Post court took seriously the fact that the platform-based disclosure law had a chilling effect on political speech. And it took this into account when considering whether the law was narrowly tailored under the exacting scrutiny analysis. That approach aligns with United States Supreme Court precedent. After all, exacting scrutiny requires a reasonable fit between the means and ends of a law, such that a state “is not free to enforce any disclosure regime that furthers its interests” at any cost. Ams. For Prosperity, 594 U.S. at 613. A court applying exacting scrutiny must carefully consider the extent of those costs in determining whether a law is narrowly tailored.
The lead opinion takes the opposite approach. It concludes that Meta‘s decision to ban Washington political ads is irrelevant—that it “does not impact this court‘s exacting scrutiny analysis.” Lead opinion at 24; see also id. at 25, 25 n.11. It does not explain why such an obvious burden on political speech is irrelevant.
The lead opinion also fails to acknowledge that the means-ends analysis does not end with the determination that it is literally possible for Meta to comply with the law, regardless of the burden on its finances or business model. Id. at 25-26 (framing the question as whether Meta presented a genuine issue of material fact
In sum, the lead opinion fails to acknowledge that “[d]isclosure obligations applied to neutral-third party platforms are … , from a First Amendment perspective, different in kind from conventional campaign finance regulations.” Id. at 516. It is important to consider these distinctions when analyzing whether a platform-targeted disclosure law is narrowly tailored.
B. Even if exacting scrutiny applies, Meta has set forth facts sufficient to establish a genuine issue of material fact about whether the disclosure law is unduly burdensome
As discussed above, the extent of the burden that the law places on Meta is highly relevant to determining whether that law is narrowly tailored to achieve the State‘s goal of an informed electorate.
In this case, Meta argues that the FCPA fails the narrow tailoring requirement because it is unduly burdensome for such a third-party platform to comply. In fact, the law imposes such serious financial and technical burdens, and such steep potential penalties for violations, that Meta has concluded it is financially irrational to continue hosting Washington political ads on its platforms. The result is that a major platform for political speech is no longer accessible. Meta provided evidence that this particularly affects “smaller campaigns that lack the resources to reach voters through more expensive and traditional means” like television or radio. CP at 399 (Def.‘s Mot. for Summ. J.) (quoting declarations from Washington politicians and campaign managers).
The lead opinion concludes that Meta‘s evidence amounts to “’ “speculative” generalities which lack the “specificity” to create a genuine issue of material fact.’ ” Lead opinion at 26 (quoting Meta, 33 Wn. App. 2d at 173-74). The lead opinion primarily reaches this conclusion because it says that Meta failed to “provide specific details about what compliance with Washington‘s FCPA would actually cost.” Id. at 26-27.
The record does not support this characterization. In fact, Meta has provided detailed and specific explanations about why compliance is burdensome. Meta presented specific evidence to substantiate its arguments that, among other things, (1) identifying which ads are covered by the law is technically and financially burdensome and (2) reporting the data to the requester, particularly within 48 hours, is unduly burdensome. It‘s true that Meta has not quantified its burden with a specific dollar figure. But the lead opinion points to no authority imposing such a requirement.
The State argues that determining whether an ad is covered by the disclosure law is not an unnecessary burden because “Meta already knows how to and does identify political ads based on a definition.” Resp‘t State of Wash.‘s Answer to Pet. for Rev. at 16 n.3.
Meta has set forth nonspeculative facts that show that there is a genuine dispute about how technically difficult and expensive it would be to comply with the law. That difficulty begins with identifying which advertisements are covered by the law. Meta‘s expert, Dr. Steven Weber, provided a detailed explanation of why and how it is difficult for Meta to identify which ads are covered by the law. CP at 7869-80.
First, the law does not require purchasers of an ad to flag whether the ad is a Washington political ad when placing it on the platform. CP at 7859. Even if it did, Meta would still need to implement a process to accurately determine which ads are covered by the law to ensure compliance in cases where a purchaser fails to correctly indicate the ad‘s status. To accurately determine whether an ad is covered, Meta would need to know the full set of candidates and ballot propositions at any given time in Washington—a challenging task. CP at 7872. Nearly 7,000 candidates filed
Even if Meta could create a real-time, updated database of all Washington candidates and ballot propositions, it would still face challenges in identifying Washington political ads because of the breadth of the statutory definition of “political advertisement.” CP at 7873. An advertisement constitutes “political advertising” if it “directly or indirectly” appeals for “financial or other support” in a Washington election.
Machine learning models must be “trained” with large batches of training data to help the system “learn” to properly classify information. Id. Training data consist of manually labeled examples—on the scale of thousands or even millions of manually labeled images. CP at 7876-77. Dr. Weber explains the complexity of training a machine learning model to specifically recognize Washington political ads given the broad statutory definition of a political ad combined with the limited data set available: “The need to identify Washington elections, candidates, and ballot propositions in particular means that very specific examples would have to be used
“Meta can leverage the large number of advertisements that run on Facebook to create relatively stable training data that can then be used to develop machine learning classification algorithms to identify ads about ‘social issues, elections or politics.’ ” CP at 7880. “This process could not easily be replicated for the identification of Washington Political Ads specifically” because “the difficulties with creating an initial, stable set of data for classifying Washington Political Ads is augmented by the necessity of having the machine constantly learn new information while ‘forgetting’ information that quickly becomes irrelevant as (for example) candidates drop out of local and statewide races.” Id. Thus, Dr. Weber opined that
In addition to Dr. Weber‘s declaration, Meta presented additional evidence to rebut the State‘s assertion that it could easily alter its Ad Library to display the requested information. Deposition testimony from Ani Vanesyan explained that the financial and technical burden of altering Meta‘s Ad Library to display the required information for Washington political ads would be “substantial and significant” and “nontrivial.” CP at 8370. Moreover, altering the Ad Library “could also challenge the stability of the tool, because the more complex the code becomes on the back end, the more unstable the tool is.” Id.
At the summary judgment stage, we view the evidence in the light most favorable to the nonmoving party. Here, nonmoving party Meta has provided evidence that it cannot identify covered ads without significant and ongoing expenditures of time and money. It has provided evidence that using machine learning—alone or with other review systems—to identify Washington political ads is not feasible. These facts—which conflict with the State‘s assertions—are highly relevant and material to whether the burden the law places on Meta‘s First Amendment rights and the chilling effect the law has on political speech are justified.
Meta has also provided sufficiently specific evidence to support its argument that responding to disclosure requests within 48 hours—no matter how many ads the request covers, and no matter who requests the ad and for what purpose—is not narrowly tailored and is unduly burdensome.
Dr. Weber explained that producing responsive data upon request under the timelines imposed by the FCPA “requires the use of considerable resources” within Meta and through external contractors. CP at 7881. Determining “the universe of ads for which data is being requested” is difficult because requesters are not required to specifically identify the ads for which they seek information. CP at 7882-83. Meta employees and outside contractors must then formulate a query to retrieve the requested ads and review the retrieved ads to ensure that they really are Washington political ads and that they really do contain the relevant information; this is “a time-intensive process, especially because the results of the data query can sometimes constitute hundreds of pages for a single advertiser.” CP at 7884. Next, contractors review the compiled data “to identify sensitive data or any information outside the scope of the Washington Disclosure Law, and then redact[] such data.” Id. The legal team engages in a final review of the data and sends it to the requester. CP at 7885.
The lead opinion does not address this argument, concluding instead that Meta loses because it did not “quantify the resources needed to comply” with the law. Lead opinion at 26-27. Even though Meta has not assigned specific dollar amounts to the burden it faces in complying with the disclosure law, it has described those burdens with sufficient detail to survive summary judgment. The disputed evidence regarding the burden on Meta should be resolved by a fact finder.
II. THE LEAD OPINION‘S “PER AD, PER REQUEST” APPROACH TO CALCULATING THE NUMBER OF FCPA VIOLATIONS CORRECTLY RECOGNIZES THAT THE LAW REQUIRES PLATFORMS TO COLLECT, MAINTAIN, AND DISCLOSE INFORMATION ABOUT INDIVIDUAL ADS AND DISCLOSE THAT INFORMATION IN RESPONSE TO SPECIFIC REQUESTS
The next issue is one of statutory interpretation: what counts as a “violation” under
The penalty provision of the disclosure law provides that a “person who violates any of the provisions of this chapter may be subject to a civil penalty of not more than ten thousand dollars for each violation.”
That‘s a significant potential penalty per violation. But the law does not define what constitutes a “violation.” Instead, it specifies what does not constitute a violation by excluding “a violation of this chapter that is not a remediable violation, minor violation, or an error classified by the [PDC] as appropriate to address by a technical correction.”
The lead opinion, concurrence/dissent, and Meta each present different interpretations of the statutory term “violation.” While I think this is a close question,
The language of the law obligates Meta to collect, maintain, and disclose information about each covered advertisement.
The lead opinion also persuasively reasons that its interpretation best supports the legislature‘s repeatedly stated intent to ensure full disclosure of campaign expenditures and its mandate to construe the FCPA “liberally” to promote that goal.
Meta argues that the disclosure law requires it to make information available “promptly upon request,”
The concurrence/dissent focuses on the law‘s requirement that platforms maintain specific information about each advertisement, prior to and independent of any later request for that information. It concludes that this means that the legislature made a platform‘s failure to disclose the required information “result[] in one violation for each advertisement, regardless of the number of requests for that same information.” Concurrence/dissent at 15. The concurrence/dissent concludes that the disclosure law does not impose penalties “per request.” Id.
In my view, both Meta and the concurrence/dissent fail to acknowledge all parts of the disclosure law. Meta‘s approach ignores the law‘s requirement that platforms maintain and disclose information about each advertisement. The
The correct interpretation must acknowledge that the law requires platforms to both maintain specific information and to make that information available for public inspection. Further, as the lead opinion points out, the legislature repeatedly emphasized its intent to maximize disclosure. Taken together, the most reasonable interpretation of the law is that the harm (depriving voters of required campaign finance information) occurs each time a platform fails to disclose the information upon request.14
III. THE TRIAL COURT‘S IMPOSITION OF A $35 MILLION PENALTY ON META FOR PARTIAL REPORTING VIOLATIONS VIOLATES THE EIGHTH AMENDMENT‘S PROHIBITION ON EXCESSIVE FINES
The
Meta argues that the $35 million judgment here—the largest in the history of the state by a wide margin—is excessive and disproportional to the gravity of its disclosure violations under the Bajakajian factors. The lead opinion disagrees.
The lead opinion, however, fails to properly consider the Bajakajian factors. First, the lead opinion provides little analysis of the “nature and extent” of Meta‘s violations and characterizes Meta‘s misconduct at far too high a level of abstraction. Second, the lead opinion treats the fact that Meta‘s violations were unrelated to other legal violations as irrelevant—but instead, that factor actually weighs in favor of finding the penalty excessive. Third, the lead opinion also states that Bajakajian‘s third factor, the other penalties that may be imposed for the violation, is irrelevant—but, instead, that factor also weighs in favor of finding the penalty excessive. Finally,
Under a proper analysis of the Bajakajian factors, the $35 million penalty is grossly disproportionate to Meta‘s conduct: failing to disclose some of the required information about political advertisements while disclosing much of the rest of the required information in its well-organized, conspicuously posted Ad Library. But before addressing each Bajakajian factor, I begin by reviewing some key cases on excessive fines.
A. A fine is excessive under the Eighth Amendment if it is grossly disproportionate to the gravity of the offense
In Bajakajian, Hosep Bajakajian attempted to leave the country without reporting that he was transporting more than $10,000 in currency, as required by federal law. 524 U.S. at 324-25. Because he willfully violated that reporting requirement, the entire sum he was carrying—over $350,000—was subject to forfeiture. Id. at 325 (citing
The Court considered several facts in reaching that conclusion. First, Bajakajian‘s “crime was solely a reporting offense.” Id. at 337. Second, the violation
Next, the Court considered Bajakajian‘s exposure under the federal sentencing guidelines: he could receive a maximum criminal sentence of six months, and a maximum fine of $5,000. Id. at 338. The Court compared this relatively low fine and low sentence to the maximum penalties authorized under the statute: “a maximum fine of $250,000 plus five years’ imprisonment for willfully violating the statutory reporting requirement.” Id. at 339 n.14. The Court concluded that the penalties Bajakajian actually faced, compared to the potential penalties for the worst offenders, “confirm a minimal level of culpability.” Id. at 338-39.
Finally, the Court considered the harm Bajakajian caused. It rejected the government‘s contention that there was a correlation between the amount forfeited (over $350,000) and the harm the government would have suffered had the crime gone undetected. The Court instead focused on the actual harm caused by the defendant‘s violation: he deprived the government of the information that $357,144 had left the country, but he did not deprive the government of the money itself. Id. at 339. Requiring forfeiture of that amount “bears no articulable correlation to any injury suffered.” Id. at 339-40.
We applied that analysis in GMA II. 198 Wn.2d 888. GMA, a trade group, created a segregated account to hold and disburse funds from its members to oppose an initiative that required GMO labels on packaged food. GMA ultimately collected over $14 million for this purpose. Id. at 894. GMA did not register as a political action committee or make any reports to the PDC until after the State filed a lawsuit against it for FCPA violations.
After a bench trial, the court found that GMA had intentionally violated Washington‘s campaign finance laws. Id. at 895. It found that GMA intended “‘to shield the contributions made from GMA members from public scrutiny‘” and to bypass the FCPA‘s requirement to publicly disclose GMA members’ contributions
GMA argued that the penalty was unconstitutionally excessive. This court affirmed the penalty after applying the Bajakajian factors. Id. at 899.
As to the first factor, we explained that the nature and extent of GMA‘s violation was “‘intentionally concealing the true source of over $10 million in campaign spending’ and directly violating the core principles of the FCPA.” Id. (quoting court papers). While GMA‘s violation was a reporting offense, it differed significantly from the individual reporting offense in Bajakajian. We found that GMA‘s “decision to conceal the identities of its campaign contributors struck at the core of open and transparent elections” because “voters have the right to ‘know of the financing of political campaigns.’ ” Id. at 901 (quoting
As to the second factor, “GMA‘s conduct involved several illegal activities that together amounted to failing to register and intentionally concealing the true
Next, we considered the maximum penalties authorized by the legislature. Id. The FCPA had always permitted a base penalty for the amount concealed, as well as treble damages for intentional violations of campaign finance disclosure laws. Id. The maximum potential penalty that the court could have imposed on GMA under the statutes was thus “more than $43 million.” Id. at 904. The fact that the court only imposed $18 million on GMA after considering mitigating factors also weighed in favor of finding that the penalty was not grossly disproportionate. Id.
Finally, we considered the extent of the harm caused. We rejected GMA‘s argument that “concealing its contributors caused minimal harm because voters knew that grocery manufacturers opposed the initiative.” Id. Instead, we found the harm was “substantial and struck at the heart of the principles embodied in the FCPA” because “[v]oters are entitled to know who is contributing to political committees and paying for political campaigns by name, not just by category.” Id. (citing
The principles derived from Bajakajian and applied in GMA II compel the conclusion that this $35 million fine is grossly disproportionate.
“The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the [fine] must bear some relationship to the gravity of the offense that it is designed to punish.” Bajakajian, 524 U.S. at 334, 336-37 (“[C]ourts . . . must compare the amount of the [penalty] to the gravity of the defendant‘s offense.“). Meta‘s violations stem from its failure to disclose some of the required information about Washington political ads as requested by three individuals across 12 requests. Under Bajakajian, the penalty must be proportional to those violations, not to abstract concerns about election integrity.
i. Factor (1): The nature and extent of the violation
The lead opinion‘s Eighth Amendment analysis takes an abstract view of the violation. In fact, the lead opinion hardly mentions the specifics of Meta‘s violation at all in its Eighth Amendment analysis. Lead opinion at 35-38. It notes generally that Meta‘s actions “def[ied] the FCPA‘s strong goal of promoting transparency.” Id. at 38. But that would be true of any violation of the FCPA; violating the act naturally defies the act‘s goals. The lead opinion says nothing about the proportionality of this
Instead, Bajakajian requires us to consider the specific conduct giving rise to the violation. 524 U.S. at 337; see also Thomas v. Humboldt County, 124 F.4th 1179, 1193 (2024) (“‘It is critical . . . that the court review the specific actions of the violator rather than by taking an abstract view of the violation.‘” (quoting Pimentel v. City of Los Angeles, 974 F.3d 917, 922 (9th Cir. 2020))), cert. denied, 146 S. Ct. 27 (2025); State v. Timbs, 169 N.E.3d 361, 373 (Ind. 2021) (explaining that “focusing on the specific harms of specific acts,” rather than “general statements” about the severity of a category of crime, aligns with Bajakajian‘s analysis, which “pointed out that currency-reporting crimes might generally include serious violations by ‘tax evaders, drug kingpins, or money launderers’ but did not impute to the defendant the offenses of others and rather considered what specific harms his specific acts had caused“); Commonwealth v. 1997 Chevrolet & Contents Seized from Young, 639 Pa. 239, 265, 160 A.3d 153 (2017) (“In judging the gravity of the offense, we look to the culpability of the defendant rather than the severity of the crime in the abstract.”
In this case, the “nature and extent” of Meta‘s violations show that a $35 million civil fine is grossly disproportionate.
If the superior court‘s calculation is correct, Meta failed to disclose some information about Washington political ads 822 times. But even so, Meta did provide most of the required information on its Ad Library, which is free and publicly available. The information that Meta disclosed on the Ad Library as well as in its responses to individuals’ requests included the name of the ad purchaser and at least an estimate of the amount expended on the ad, as well as many other pieces of data that the law requires to be disclosed.
These facts immediately distinguish the case from GMA II. The nature and extent of GMA‘s violation was that of a political action committee intentionally, and completely, concealing the identities of campaign donors and the amounts of their
The nature of Meta‘s violations is much less severe, given that Meta did not conceal the identities of ad purchasers or the cost of advertisements and that it willingly disclosed most of the required information on a public website. Further, Meta stated that one reason it refused to disclose all the required information was that it was concerned about its users’ privacy. See Am. Appellant‘s Opening Br. at 24-25 (Wash. Ct. App. No. 84661-2-I (2023)) (discussing privacy implications of disclosing location information for its users who view ads); see also Bajakajian, 524 U.S. at 326, 337 n.12 (noting the trial court‘s finding that respondent failed to report the currency due to “distrust of the government“—though that reason isn‘t mitigating, it is relevant, because it shows Bajakajian did not have a nefarious purpose in failing to report). This distinguishes Meta‘s conduct from GMA‘s: here, there is no indication that Meta intentionally concealed information about campaign donors and expenditures in order to shield them from public scrutiny.
And though the lead opinion criticizes Meta for failing to make a good-faith effort to comply with the law, Meta did take action to avoid violating the law. It
Any violation of the FCPA hampers the FCPA‘s goals. But we must consider the specific conduct that constitutes the violation to determine whether the penalty is disproportionate. Here, Meta‘s failure to provide some of the information required to be disclosed differs greatly from GMA‘s intentional shielding of donor identity. This Bajakajian factor weighs in favor of finding the $35 million fine disproportionate to Meta‘s conduct.
ii. Factor (2): Whether the violation was related to other illegal activities
The lead opinion asserts that “the second . . . factor[] [is] not relevant here as neither side argues that Meta‘s activities relate to other legal violations.” Lead opinion at 37.
The lead opinion is wrong. The fact that Meta‘s activities do not relate to other violations actually weighs in favor of Meta here. Just as in Bajakajian, Meta‘s violation was purely a reporting violation. If it had disclosed the required information, there would have been no problem with Meta running the ads. And there is no suggestion that Meta refused to disclose the required information in connection with a larger plot (and other unlawful acts) by Meta to undermine
iii. Factor (3): The other penalties that may be imposed for the violation
The lead opinion asserts that the third factor is “not relevant here as neither side argues . . . that other penalties (save for an injunction) may be imposed.” Lead opinion at 37.
This is incorrect. The FCPA penalty statute authorizes referral for criminal prosecution for certain violations. For example, “A person who, with actual malice, violates a provision of this chapter is guilty of a misdemeanor under chapter 9.92 RCW.”
No one argues that Meta should be subject to criminal prosecution for its violations, presumably because its culpability falls below “actual malice.” The potential criminal penalty for violating the statute—reserved for the most culpable offenders—is limited to 90 days in jail and/or a $1,000 fine.
To be sure, the fact that a lesser penalty exists does not necessarily show that a fine is disproportionate. GMA II, 198 Wn.2d at 904 (citing $100,348.00 in U.S. Currency, 354 F.3d at 1122). But Meta‘s violations are less significant than the conduct at issue in GMA; hence, this factor tends to show that the fine was excessive.
iv. Factor (4): The extent of the harm caused
The final factor is the extent of the harm caused. The lead opinion describes that harm in the most generic terms possible. It acknowledges that “Meta did not outright hide the identity of political contributors” like GMA did, but it concludes without further analysis that Meta‘s actions “similarly defy the FCPA‘s strong goal of promoting transparency.” Lead opinion at 37-38.
But when conducting a proportionality analysis, “generic considerations of harm” are “largely unhelpful” because “all crimes have a negative impact in some
In this case, that actual harm is minimal, especially compared with the conduct in GMA. In GMA II, we held that the organization‘s intentional concealment of donor identities and amounts “was substantial” because “[v]oters are entitled to know who is contributing to political committees and paying for political campaigns by name.” 198 Wn.2d at 904. Here, Meta did not withhold identities of ad purchasers or information about the cost of the ads. It published that information (with the cost represented as a range) on its Ad Library, available to the public. The extent of the harm caused by Meta‘s conduct is clearly significantly lower than the harm caused by GMA‘s conduct.
And while I disagree with Meta that the extent of the harm is “limited” to the three individuals whose requests were unfulfilled, the fact that only three people were deprived of requested information bears on the extent of the harm Meta caused. See lead opinion at 37 (quoting Suppl. Br. of Pet‘r Meta Platforms, Inc. at 30-31).
CONCLUSION
Political advertising is political speech. Whether we like the content of that speech or not, it is entitled to the highest protection. But even under the lead opinion‘s lower exacting scrutiny standard, a law like the FCPA that targets campaign speech must be narrowly tailored to serve an important government interest. One of the key factors we must examine in deciding whether the law is narrowly tailored is the burden that the law places on the regulated entity and the speech-chilling effects of the law more broadly. Here, Meta shows a genuine issue of material fact relating to the extent of the burden imposed by the disclosure law. I would therefore reverse the trial court‘s grant of summary judgment in favor of the State.
I therefore respectfully dissent.
Gordon McCloud, J.
Johnson, J.
Madsen, J.P.T.