In May 2018, as Americans were continuing to learn the details of a far-reaching Russian campaign to influence the 2016 U.S. presidential contest, the state of Maryland enacted a new law to combat foreign interference in its elections. The law, known as the Online Electioneering Transparency and Accountability Act (the "Act"), sought primarily to curb foreign nationals' exploitation of Facebook, Instagram,
The Act's passage into law spurred an immediate response from the Washington Post and other media outlets with an online presence in Maryland. The outlets (collectively, "Plaintiffs") brought this action in federal court to enjoin enforcement of the portions of the Act applying to online publishers, primarily (but not exclusively) arguing that the disclosure and record-keeping requirements codified at
I conclude that Plaintiffs' First Amendment claim is likely to succeed on the merits. This conclusion stems from my determination that the Act's impositions on online publishers are subject to strict scrutiny and that they most likely would not withstand this form of judicial review. I further conclude that, even if I were to analyze the statute under the more forgiving standard of "exacting scrutiny," the Plaintiffs have shown they would likely prevail. As I am satisfied, as well, that Plaintiffs have met the other requirements for preliminary injunctive relief, their request to preliminarily enjoin enforcement of section 13-405, as applied to them, will be granted.
FACTUAL BACKGROUND
The Maryland statute is among a number of state responses
A.
For many Americans, the extent of the Russian online operations began to come into focus in January 2017, when U.S. intelligence agencies released a declassified report summarizing Russia's campaign to shape U.S. public opinion. See Office of Dir. of Nat'l Intelligence, Intelligence Community Assessment: Assessing Russian Activities and Intentions in Recent U.S. Elections (Jan. 6, 2017), https://www.dni.gov/files/documents/ICA_2017_01.pdf [hereinafter ICA Report]; Albright Decl. 4-5, ECF No. 31-1. The report, representing the joint findings of the Central Intelligence Agency ("CIA"), Federal Bureau of Investigation ("FBI"), and National Security Agency ("NSA"), concluded that Russian President Vladimir Putin had personally ordered the operations as part of a broader strategy to "undermine public faith in the US democratic process" and to damage the Democratic nominee's chances in the November 2016 presidential election. See ICA Report, supra , at 1. The campaign encompassed a range of tactics, which - beyond the online trolling
In March 2017, then-FBI Director James Comey revealed in testimony before the U.S. House of Representatives Permanent Select Committee on Intelligence that the FBI was investigating Russian efforts to interfere in the 2016 election. In re Grand Jury Investigation ,
In the first of those cases, a grand jury on February 13, 2018, indicted three Russian companies and thirteen Russian nationals, linking them to an extensive campaign to conduct what participants allegedly described as "information warfare against the United States of America." Indictment at 6, Internet Research Agency , No. 18-cr-32-DLF. The indictment accuses a St. Petersburg-based organization known as the Internet Research Agency of spending millions of dollars and employing hundreds of people to post divisive and inflammatory material on social media sites in 2015 and 2016. See
The indictment also asserts that, between April 2016 and November 2016, members of the Internet Research Agency, acting under assumed false identities, bought advertisements on "U.S. social media and other online sites expressly advocating for the election of then-candidate Trump and expressly opposing" his Democratic rival, former Secretary of State Hillary Clinton. See
A declaration included with Plaintiffs' reply brief in this case expands on the special counsel's assertions, filling in details about the Russian plot. Jonathan Albright, director of the Digital Forensics Initiative at the Tow Center for Digital Journalism at the Columbia University Graduate School of Journalism, explained that his research into foreign interference with the 2016 election has shown that the primary weapons in the Russian disinformation campaign were unpaid social media posts, rather than paid advertisements. See Albright Decl. 6. For the most part, the operatives' posts made no explicit references to the election or to any particular candidates. See
Albright's research also identified a considerably smaller volume of foreign-sourced paid content. See
Testimony by senior counsel for the Democracy Program at the Brennan Center for Justice during a Maryland House of Delegates committee hearing on the Act indicated that Russian operatives had Maryland residents, in particular, in their crosshairs during the run-up to the 2016 election. See Brennan Center Testimony 2. Counsel noted the operatives "targeted socially polarizing Facebook ads to the Baltimore area, which was experiencing mass protest movements and high tensions" at the time.
B.
It was in February 2018, amid the uproar over Russian meddling in American political affairs, that Maryland legislators - noting an absence of any federal statutory or regulatory activity aimed at thwarting foreign interference in its elections - resolved to act and introduced the bill at issue here. While presenting the legislation in the House of Delegates, the bill's sponsors testified that its aim was to stop foreign powers - Russia, in particular - from interfering in Maryland elections in the future.
The bill, as enacted, expands the scope of the state's existing campaign finance laws to cover online political ads. See
The Act goes farther. One section empowers the state administrator of elections to investigate potential violations of the laws governing online political ads. See
The Act's other revisions to the state's election law, which Plaintiffs challenge here, impose a series of duties on "online platforms" that feature paid political ads. The Act defines "online platform" as
any public-facing website, web application, or digital application, including a social network, ad network, or search engine, that:
(1) has 100,000 or more unique monthly United States visitors or users for a majority of months during the immediately preceding 12 months; and
(2) receives payment for qualifying paid digital communications.
The publication requirement is found in section 13-405(b) of the Maryland Election Law. Under this provision, an online platform that agrees to place a "qualifying
The state inspection requirement, found in section 13-405(c), imposes separate record-keeping obligations. Here, the platform must preserve a digital copy of the ad and maintain records containing the following information:
(i) the candidate or ballot issue to which the [ad] relates and whether [it] supports or opposes that candidate or ballot issue;
(ii) the dates and times that the [ad] was first disseminated and last disseminated;
...
(iv) an approximate description of the geographic locations where the [ad] was disseminated;
(v) an approximate description of the audience that received or was targeted to receive the [ad]; and
(vi) the total number of impressions generated by the [ad].
The publication requirement and state inspection requirement are functionally distinct, but they operate as part of a single scheme. To facilitate compliance with both obligations, the Act requires online platforms to provide ad buyers with a way of notifying them when an ad they are seeking to place comes within the statutory definition of a "qualifying paid digital communication." See
The Act took effect on July 1, 2018. See
C.
Plaintiffs
Plaintiffs' motion raises several constitutional arguments. Chiefly, it argues that
The parties have fully briefed the motion and presented arguments at a hearing on November 16, 2018.
DISCUSSION
A preliminary injunction serves to "protect the status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court's ability to render a meaningful judgment on the merits." In re Microsoft Corp. Antitrust Litig. ,
Winter v. Natural Resources Defense Council, Inc. establishes the familiar requirements for a preliminary injunction. Under Winter , the plaintiff must show "that [1] he is likely to succeed on the merits, [2] he is likely to suffer irreparable
A.
In reviewing a motion for preliminary injunction, a court must separately consider each of the four Winter factors. See Di Biase ,
"A plaintiff need not establish a 'certainty of success,' but must make a clear showing that he is likely to succeed at trial."
1.
The dispute over the Act's constitutionality underscores the tension between two competing interests in Free Speech Clause jurisprudence. The first and most readily apparent of these is, of course, the individual's interest in free expression - i.e., the speaker's interest in speaking. The other is the broader public's interest in minimizing the societal harms that would be all but certain to flow from an absolute, unchecked right to say anything at any time, in any place, and in any manner the speaker so desires. See Thomas I. Emerson, Toward a Theory of the First Amendment ,
The text of the Free Speech Clause unequivocally protects the first of these interests, declaring in no uncertain terms that Congress "shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. It is long since settled, though, that the Clause does not strip the government of all power to regulate speech. See Fed. Election Comm'n v. Wis. Right to Life, Inc. ,
To guide lower courts in this exercise, the Supreme Court has propounded several baseline principles, three of which come into play in this case. First, the Court has observed that the Free Speech Clause aims, above all else, to guarantee the "free debate and free exchange of ideas" necessary to ensure "that government remains responsive to the will of the people." Terminiello v. City of Chicago ,
Second, it is a fundamental tenet of First Amendment jurisprudence that the government "has no power to restrict expression because of its message, its ideas, or its content." United States v. Alvarez ,
Finally, the Court has left no doubt that the First Amendment cabins the government's power to compel speech no less than it does the power to restrict speech. See Janus v. Am. Fed'n of State, Cty. & Mun. Emps. Council 31 , --- U.S. ----,
This last concept intersects with the second, as any law that compels speech "necessarily alters the content of the speech." Riley v. Nat'l Fed. of Blind of N.C., Inc. ,
2.
These three principles lay the foundation for my analysis here. The first is plainly implicated because the Maryland statute regulates electioneering communications - indisputably a form of political speech. See Wis. Right to Life ,
But this is far from the end of the matter, because as the State rightly notes, the field of First Amendment case law is fertile with exceptions to the various fundamental rules. See Stuart v. Camnitz ,
The First Amendment is more protective of another category of speech - namely, commercial speech - but here, too, the Court has seen fit to give the government extra leeway. See Janus ,
The general principle that content-based regulations of speech are presumptively unconstitutional gives way in other contexts as well. See generally Matthew D. Bunker et al., Strict in Theory, but Feeble in Fact? First Amendment Strict Scrutiny and the Protection of Speech , 16 Comm. L. & Pol'y 349, 362-63 (2011). For example, the Court has recognized that the government's responsibilities as an administrator and service provider may require a freer hand to regulate speech by people in its care or custody, such as public school students or prisoners. See Morse v. Frederick ,
Along similar lines, the Court has carved out special rules for broadcast media, reasoning that the finite supply of broadcast frequencies justifies "some adjustment in traditional First Amendment analysis to permit the Government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees." Turner Broad. Sys., Inc. v. Fed. Commc'ns Comm'n ,
Each of these lines of cases marks a limited exception to the baseline principles controlling the constitutional review of content-based laws and regulations (including those that compel speech). Here, the State invokes a separate line of cases presenting yet another exception to the rule. Its argument, in brief, is that the Maryland statute is, in effect, a campaign finance disclosure law and ought to be reviewed under a less-demanding standard the Court has specially reserved for those cases, a standard known as "exacting scrutiny." What follows is a brief synopsis of this line of cases.
3.
The seminal campaign finance case is Buckley v. Valeo , which observed, as a preliminary matter, that the Constitution empowers Congress to regulate federal
Buckley established the standards that courts apply in cases challenging campaign finance regulations on First Amendment grounds. In doing so, the Court drew distinctions between different types of regulations "based on the degree to which each encroaches upon protected First Amendment interests." McCutcheon v. Fed. Election Comm'n ,
By contrast, the Buckley Court found that contribution limits - i.e., regulations limiting the amount of money a person or group may contribute to a candidate or political committee - were less worrisome, reasoning that these types of regulations entail "only a marginal restriction upon the contributor's ability to engage in free communication"
The last - and, for present purposes, most relevant - variety of campaign finance regulation the Buckley Court addressed was arguably the least constitutionally suspect: disclosure requirements. See Buckley ,
Turning to the statute before it, the Buckley Court observed that, in the campaign finance context, disclosure requirements have the potential to deter some people from making contributions and could, under some circumstances, "expose contributors to harassment or retaliation."
The test that emerged from Buckley , which has come to be known as "exacting scrutiny," requires the government to show the record-keeping, reporting, or disclosure provisions of a campaign finance law are "substantially related" to an "important" government interest. See John Doe No. 1 v. Reed ,
The Supreme Court has applied the Buckley "exacting scrutiny" test on five occasions.
The Buckley test reappeared decades later in Davis v. Federal Election Commission ,
The remaining two cases dealt with state ballot initiatives. In Buckley v. American Constitutional Law Foundation, Inc. (ACLF), the Court struck down a Colorado statutory provision requiring ballot-initiative proponents who employ paid circulators to file reports disclosing not only the proponents' identities but the circulators' names and addresses and the total amount paid to each circulator.
Here, the parties and amici have identified twelve federal appellate court decisions applying the Buckley exacting scrutiny standard.
4.
To review, the State does not dispute that the statute at issue here implicates political speech and discriminates on the basis of content - two factors that, ordinarily, saddle the government with the burden of overcoming strict scrutiny. See Reed ,
The Maryland statute is indisputably unlike the various statutes the Supreme Court and federal courts of appeals have reviewed under the Buckley exacting scrutiny standard. In each of those cases, the challenged regulations imposed burdens on individuals or groups seeking to influence an election or ballot question-the direct participants in the electoral process. They did not burden ostensibly neutral third parties such as publishers of political advertisements, as the Maryland statute does.
To this, the State offers two replies. First, it argues that "nothing in Citizens United or its forebears supports" Plaintiffs' inference that exacting scrutiny applies only to disclosure requirements burdening "speakers of election-related speech." Defs.' Opp'n 16-17 (emphasis in original) (quoting Pls.' Mem. 17). Second, it suggests the Buckley rationale applies no less forcefully to regulations burdening the press than to those that burden political actors directly. I address each of these arguments below.
i.
The State's first argument is hardly persuasive. A court cannot be expected to answer a legal question that no party in the case before it has squarely presented. See U.S. Const. art. III, § 2; O'Shea v. Littleton ,
That said, it is simply not true that no court has examined a regulation that compelled media outlets to make disclosures in connection with political advertisements. None other than the Supreme Court did just that in McConnell v. Federal Election Commission ,
This particular portion of the McConnell Court's opinion concerned Title V of the Bipartisan Campaign Reform Act of 2002 ("BCRA"), which amended the Communications Act of 1934 to require broadcast licensees to collect and disclose records of
The Supreme Court reversed. McConnell ,
The McConnell majority could have declared, as both the Chief Justice's dissent and the lower court panel did, that Buckley's "exacting scrutiny" standard applied to Title V's disclosure requirements. It did not. While the majority's opinion leaves unclear exactly which standard of constitutional scrutiny controlled in that case,
ii.
The State's second argument looks to Buckley itself, suggesting its rationale applies to laws like Maryland's no less forcefully than it does to more traditional campaign finance disclosure laws that impose no burdens on the press or other third parties. See Defs.' Opp'n 16. Under either regime, the State argues, the disclosure requirement serves the same governmental interest of " 'providing the electorate with information' about sources of election-related spending." Id. at 17,
This argument, as I see it, makes the mistake of viewing the government's interest in isolation from the speaker's interest. It may well be true that the public benefits equally from information about candidates' finances no matter where the information is sourced, be it from the political committees themselves or from the press. It does not follow, though, that as a matter of constitutional law it makes no difference which route the government takes.
The Supreme Court's analysis in Buckley began with the premise that campaign finance regulations intrude on political expression, which is entitled to "the broadest" First Amendment protection.
The flaw in the State's argument here is that it overlooks the possibility that statutes like Maryland's might encroach on First Amendment rights more profoundly than ordinary campaign finance disclosure requirements. This is an error, because to my mind, it is evident that they do. All compelled disclosure laws implicate the Free Speech Clause, but laws imposing those burdens on the media implicate a separate First Amendment right as well: the freedom of the press. See U.S. Const. amend. I ("Congress shall make no law ... abridging the freedom ... of the press ...."). "[L]aws that single out the press, or certain elements thereof, for special treatment 'pose a particular danger of abuse by the State' ...." Turner Broad. Sys. ,
iii.
It should be clear by now that, when analyzing the constitutionality of a compelled disclosure law, Buckley is not the starting point. The "exacting scrutiny" standard it propounded is, on the contrary, a limited exception to the general rule that compelled disclosure laws, like all content-based regulations, must overcome strict scrutiny. See Reed ,
Reed v. Town of Gilbert was a watershed First Amendment case, refining the analysis of content-based regulations and cementing the primacy of the rule that such regulations receive strict scrutiny. See Free Speech Coal., Inc. v. Attorney Gen. ,
Justice Thomas's majority opinion in Reed did not allude to the various species of regulations that have historically received less rigorous scrutiny, even where they plainly discriminate on the basis of content. See
An even more recent majority opinion by Justice Thomas sends the same signal.
A five-member majority of the Supreme Court reversed. Id. The majority declined to follow several circuits' lead in recognizing "professional speech" as a separate category of speech, explaining:
This Court has been reluctant to mark off new categories of speech for diminished constitutional protection. And it has been especially reluctant to exempt a category of speech from the normal prohibition on content-based restrictions. This Court's precedents do not permit governments to impose content-based restrictions on speech without persuasive evidence of a long (if heretofore unrecognized tradition) to that effect.
Id. at 2372 (alterations, citations, and quotation marks omitted). The Court concluded the state had failed to identify "a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles." Id. at 2375.
Along the way, Justice Thomas's opinion recognized that the Court had, at times, "applied a lower level of scrutiny to laws that compel disclosures in certain contexts." Id. at 2372. Of note, in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio ,
Becerra counsels against the State's position here. First, it reaffirms the bedrock principle that content-based laws are presumptively unconstitutional. See Becerra ,
The State urges me to take the opposite approach here, advising me to apply the Buckley "exacting scrutiny" standard more expansively than the Supreme Court or any federal appellate court have ever applied it. My reading of Reed and Becerra persuades me that this would be improper. The applicable standard, I am convinced, is strict scrutiny. This is the standard I will now apply.
Under strict scrutiny, the government bears the burden of showing the challenged regulation "furthers a compelling interest and is narrowly tailored to achieve that interest." See Reed ,
The State's briefing on Plaintiffs' motion does not bother to argue the Act is capable of surviving strict scrutiny, placing all its bets on the applicability of the exacting scrutiny standard, which I have rejected. Nevertheless, at a hearing on Plaintiffs' motion, counsel for the State said he was "not prepared to concede" the point, arguing that an opportunity to further investigate the issue through the discovery process might bolster the State's position. Counsel also suggested that the Act's requirements may yet be "refined" (translation: narrowed) in such a way as to survive strict scrutiny as the State Board of Elections exercises its power to promulgate regulations under the Act.
These are not the arguments of a party that is confident in its case. To begin, the issue before me at this stage of the litigation is whether Plaintiffs' First Amendment claim is likely to succeed on the merits. See Winter ,
The State's other argument - that future regulations may refine the Act's requirements - is equally unpersuasive. The only way regulations could "implement" the Maryland statute in a way that would allow it to survive strict scrutiny would be to narrow its impact to such an extent that it would be contrary to what was enacted by the Maryland legislature. But, of course, "[r]egulations cannot overrule the statute under which they are promulgated" Kemp v. Seterus, Inc. , No. PJM-18-472,
That said, it remains the Plaintiffs' burden to show their claim that the Act fails strict scrutiny is likely to succeed on the merits. See Winter ,
The first point does not appear to be in dispute. See Pls.' Mem. 18 ("assuming" the state has a compelling interest in combatting foreign meddling in U.S. elections). That is only right, as I would think it evident that states have a compelling interest in preventing foreign governments and their nationals from interfering in their elections. See Bluman v. Fed. Election Comm'n ,
While it appears to me that the Act's primary purpose was to combat foreign meddling in the state's elections, this was certainly not its only aim. See Test. of Common Cause Maryland, ECF No. 24, Ex. C (urging the bill's passage because "both unethical domestic campaigns and hostile foreign campaigns used social media to spread" disinformation in the 2016 election (emphasis added) ). The requirements that both political actors and publishers make certain disclosures in connection with online ads appear to serve two broader goals: informing voters about the source of online ads and deterring corruption. See
But the difficulty for the State is that, under strict scrutiny, it must demonstrate that the challenged provisions of the Act are "narrowly tailored" to promote those interests, meaning that "no 'less restrictive alternative' would serve" its purposes. Cent. Radio ,
Maryland's statute fails for both reasons. It regulates substantially more speech than it needs to while, at the same time, neglecting to regulate the primary tools that foreign operatives exploited to pernicious effect in the 2016 election.
I begin with the publication requirement,
The veritable infiniteness of cyberspace does not cure this constitutional infirmity. I grant that requiring state-mandated disclosures to appear on a news website does not necessarily take up space the site's owner might otherwise devote to other content. See Tornillo ,
The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials-whether fair or unfair-constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.
The State cannot - and, in fact, does not - argue that the publication requirement is the least restrictive means available of achieving its interest in informing the electorate because, as it happens, Maryland campaign finance laws prescribe other means of obtaining the same information. These laws require political committees to report all of their expenditures to the State Board of Elections. See
The state inspection requirement also fails strict scrutiny. While certainly less offensive to the First Amendment than the publication requirement, see
Even if I were to conclude that such impositions on the press might be tolerable under the First Amendment, the Act's state inspection requirement - like the publication requirement - would still be unconstitutionally overinclusive. This is because the Act imposes its obligations on any and all "online platforms," a term it defines to include "any public-facing website, web application, ... social network, ad network, or search engine" that accepts ads and that can claim "100,000 or more unique monthly visitors or users for a majority of months during the immediately preceding 12 months."
It is clear enough that a state could fashion a more narrowly tailored regulation than the one Maryland has enacted. New York, in fact, has done just that; its definition of "online platform" closely resembles Maryland's but requires the site to have at least 70 million "unique monthly United States visitors or users for a majority of months during the preceding 12 months." 9 N.Y. Comp. Codes R. & Regs. 6200.10(b)(12) (2018). I do not mean to suggest that the threshold in Maryland must be in line with the one in New York - which, after all, is a considerably more populous state. Strict scrutiny, though, demands an exceedingly tight fit between the regulation's burdens and its aims. It seems unlikely that Maryland will be able to show that a less expansive definition of "online platform" would detract in any way from the Act's goal of neutralizing foreign influence in the state's elections.
This alone would justify a determination that Plaintiffs' First Amendment claim is likely to succeed on the merits. Ultimately, though, the Act appears to suffer from an even more fundamental defect in that it solely targets "qualifying paid digital communications" - which is to say, political advertisements a buyer pays to place on an online platform. See
Strict scrutiny is demanding, to say the least. See Williams-Yulee v. Fla. Bar , --- U.S. ----,
6.
As I have noted, the State made little attempt to argue its statute could overcome strict scrutiny. Its brief asserts, instead, that the applicable standard of judicial review is the "exacting scrutiny" standard the Supreme Court promulgated in Buckley , and that Maryland's law survives this level of scrutiny. While I am under no obligation to decide this question, I have thoroughly reviewed the parties' arguments and the case law, and I am satisfied the State's argument is unavailing. I will pause here to explain why the Act would not pass muster even under this lesser standard of review.
Citizens United explains that the "exacting scrutiny" standard "requires a 'substantial relation' between the disclosure requirement and a 'sufficiently important' governmental interest."
In the First Amendment context, fit matters. Even when the Court is not applying strict scrutiny, we still require 'a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served, that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective.
Wis. Right to Life ,
In this context, "exacting scrutiny" does not require the government to show its interest is "compelling," with all that that word has come to entail in strict scrutiny cases. See Turner Broad. Sys. ,
Of those cases, one strikes me as particularly instructive. In Buckley v. American Constitutional Law Foundation (ACLF),
ACLF provides a vivid example of a mismatch between a disclosure requirement's means and its ends. The requirement was not entirely devoid of value; as Justice O'Connor observed in her partial dissent, the requirement mandated the disclosures be made while circulation efforts were ongoing, which might conceivably have assisted members of the public in "evaluat[ing] the sincerity or, alternatively, the potential bias of any circulator that approaches them." ACLF ,
Maryland's statute similarly misses its mark. It is not that the Act promises no benefits whatsoever. Here, though, the publication and state inspection requirements appear ill suited to their missions in at least three ways: first, they are duplicative of other campaign finance disclosure requirements; second, they do not target the deceptive practices the Act ostensibly seeks to deter; and, third, they are poorly calibrated to prevent foreign operatives from evading detection.
I have already addressed the first of these defects. Under subsection 13-405(b) (the publication requirement), online publishers must disclose the identity of political ad buyers and the total amount paid for each ad. See
Subsection 13-405(c) (the state inspection requirement) also overlaps with other campaign finance disclosure requirements. Specifically, this subsection requires online publishers to keep records that, among other things, identify the candidate or ballot issue to which each ad relates and whether the ad supports or opposes that candidate or ballot issue. See
To be sure, the state inspection requirement is not entirely duplicative. Several of its demands go farther than other Maryland campaign finance disclosure requirements - in particular, the obligation to maintain records of the dates and times the ads appeared online; an "approximate description" of the ad's audience and the "geographic locations" where it appeared; and the total number of "impressions" the ad generated.
What is clear, at least, is that publishers have a legitimate grievance with a law that obligates them to cough up proprietary information about their customer base and the reach of their websites (information akin to circulation figures for traditional print media). The compelled disclosure of this information could expose their proprietary data - if not necessarily to competitors, then at least to the state, which may well count itself as a participant in the market for online ads. Given the risks, a publisher that prizes the privacy of its data might find it preferable to simply decline to accept political ads - a prospect that runs counter to the First Amendment's aim of promoting the free expression of ideas.
This leads me to the second of the Act's most critical defects: its failure to remedy the harms that inspired its enactment. I have already discussed this failing in some detail, and there is no need to repeat myself here. In short, the Act's publication and state inspection requirements overshoot their target by a wide margin. They regulate international, regional, and local websites alike, even as all available evidence suggests that foreign operatives largely confined their activities to Facebook, Instagram, and other global social media platforms. See Indictment at 5-6, Internet Research Agency , No. 18-cr-32-DLF; Albright Deck 7-8; Brennan Center Testimony 2. At the same time, the Act reserves its fire for paid political advertisements, even though it appears the Russian disinformation campaign relied far more heavily on fake websites and free social media posts. See Albright Decl. 6.
These are just two of the ways in which the Act's requirements and its aims are substantially mismatched. Plaintiffs have identified one more, and it concerns the
These infirmities separate Maryland's statute from the more traditional campaign-finance disclosure requirements that have withstood exacting scrutiny. See, e.g., Indep. Inst. ,
B.
Of course, it is not enough for Plaintiffs to show their First Amendment claim is likely to succeed on the merits, as this is merely the first of the four factors a court must address on a motion for preliminary injunctive relief. Under Winter , Plaintiffs must also show they are "likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest."
I start with the second factor (irreparable harm). Here, the analysis is straightforward. Maryland's statute trenches on Plaintiffs' First Amendment rights, which will irreparably harm Plaintiffs as a new election cycle gets under way. See Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd. ,
The third and fourth Winter factors are also easily satisfied. As these factors tend to raise similar considerations, courts often consider them in tandem. See Int'l Refugee Assistance Project v. Trump ,
Plaintiffs have met their burden on all four of the Winter factors. I conclude, accordingly, that preliminary injunctive relief is warranted.
CONCLUSION
The 2016 election exposed alarming new vulnerabilities in this country's democratic processes. While there is no denying that states have a strong interest in countering newly emerging threats to their elections, the approaches they choose to take must not encroach on First Amendment freedoms that are the hallmark of our nation. Maryland's statute appears to overstep these bounds. While I have no cause to block its enforcement wholesale, Plaintiffs have persuaded me that
Plaintiffs have challenged the Act on broader grounds than I have discussed in this ruling; while their arguments primarily have focused on how the Act applies to them, they also contend it is facially unconstitutional. It is not necessary for me to address this contention at present, because the grounds discussed warrant the injunctive relief they seek at this stage in the litigation. Before determining what, if any, further proceedings are necessary to conclude this case, I will schedule a telephone conference call with counsel. The State may well wish to file an interlocutory appeal, and if so it may be prudent to stay further proceedings until the appeal has been decided.
A separate order follows.
Notes
The motion for preliminary injunctive relief has been fully briefed. See ECF Nos. 9, 9-1, 24, 31, 37. A hearing took place on November 16, 2018.
New York and Washington each updated their election transparency laws this year in a roughly similar fashion. See Democracy Protection Act, 2018 N.Y. Sess. Laws ch. 59, pt. JJJ (McKinney) (codified at
The word "troll" has taken on a new meaning in the age of social media. See Merriam-Webster, Welcome to the New Words (Sept. 2017), https://www.merriam-webster.com/words-at-play/new-words-in-the-dictionary-sep-2017 (announcing an expanded definition). In this context, the term means "to harass, criticize, or antagonize (someone) especially by provocatively disparaging or mocking public statements, postings, or acts." See
See also Elizabeth Dwoskin et al., Russians Took a Page from Corporate America by Using Facebook Tool to ID and Influence Voters , Wash. Post (Oct. 2, 2017), https://www.washingtonpost.com/business/economy/russians-took-a-page-from-corporate-america-by-using-facebook-tool-to-id-and-influence-voters/2017/10/02/681e40d8-a7c5-11e7-850e-2bdd1236be5d_story.html?utm_term=.ac9c5084a797 (explaining Albright's findings).
In this context, the phrase "social engineering" refers to the use of technology "to swindle people and manipulate them into disclosing passwords or bank information or granting access to their computer." Scott L. Schmookler & Christopher M. Kahler, Social Engineering: Is the Manipulation of Humans a Computer Fraud? , 22 Fidelity L.J., Nov. 2016, at 1, 4-5.
A Brennan Center attorney, testifying in favor of the bill at the House committee meeting, said the bill was needed both to stymie Russian threats to the state's democratic processes and to combat attempts by other foreign governments and their nationals to funnel money to super PACs to influence state elections. See Hearing on H.B. 981 (statement of Democracy Program Senior Counsel Daniel I. Weiner) (urging the House of Delegates to pass the bill on the ground that it "takes meaningful steps to address both of these problems").
Plaintiffs assert that the currency restriction is itself an unconstitutional restraint on speech. See Compl. ¶¶ 69-71, ECF No. 1; Pls.' Mem. 22 n.15, ECF No. 9-1. However, neither the Complaint nor the memorandum in support of the motion for preliminary injunctive relief cites any authority for this contention. Plaintiffs have not explained how this restriction trenches on their free speech rights, given the ready availability of currency conversion services. While I cannot rule out the possibility that Plaintiffs' argument might succeed on the merits on summary judgment or at trial, I am not persuaded that Plaintiffs have met their burden at this stage of the proceedings. Accordingly, the request to preliminarily enjoin enforcement of section 13-405.2 is denied.
The statute defines "qualifying paid digital communication" as "any electronic communication that: (1) is campaign material; (2) is placed or promoted for a fee on an online platform; (3) is disseminated to 500 or more individuals; and (4) does not propose a commercial transaction." Elec. Law § 1-101(ll-1).
Platforms that can demonstrate that the 48-hour publication requirement "presents an unreasonable burden" may seek a compliance waiver from the State Board of Elections. Elec. Law§ 13-405(b)(5).
The platform "may rely in good faith on the information" the buyer provides.
Plaintiffs are: the Washington Post; Baltimore Sun Co., LLC; Capital-Gazette Communications, LLC; Carroll County Times, LLC; APG Media of Chesapeake, LLC; Community Newspaper Holdings, Inc.; Ogden Newspapers of Maryland, LLC; Schurz Communications, Inc.; and Maryland-Delaware-D.C. Press Association, Inc.
Plaintiffs also seek to enjoin the State from enforcing § 13-405.1, which authorizes the state administrator of elections to investigate potential violations of § 13-401 and § 13-405. See
The Campaign Legal Center and Common Cause Maryland submitted a brief as amici curiae in support of the State and appeared (at the Court's request) at the November motions hearing. See ECF No. 28. I appreciate the skillful written and oral presentations of counsel for the parties and amici , as well as their professionalism in their dealings with each other.
The Court's application of the phrase "exacting scrutiny" has not always been exacting in its own right, leading to considerable confusion. Scholars have noted the Court has at times used "exacting scrutiny" and "strict scrutiny" interchangeably. See Recent Case, Minn. Citizens Concerned for Life, Inc. v. Swanson ,
The Court invoked Buckley in the course of reviewing a federal campaign finance disclosure requirement in a sixth case, McConnell v. Federal Election Commission ,
See Indep. Inst. ,
In the end, the majority appears to suggest it made no difference which standard applied, because "[g]iven the FCC regulations and their history, the statutory [disclosure] requirements must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny." McConnell ,
The Act expanded these requirements to include expenses on online ads. See