After revelations of Russian meddling in the 2016 presidential election, Maryland legislators passed a law that many believe has a laudable purpose: preventing foreign interference in local elections.
But its sweeping scope sparked a First Amendment outcry from more than a half dozen newspapers, including The Washington Post and The Baltimore Sun.
Now, a federal appeals court is being asked to decide whether the law goes too far. The 4th U.S. Circuit Court of Appeals is set to hear arguments in the case Wednesday.
The newspapers and the Maryland-Delaware-D.C. Press Association argue in a lawsuit that the statute violates the First Amendment because it requires them to collect and self-publish information about the sponsors of online political ads. It also requires them to keep records of the ads for inspection by the state Board of Elections.
U.S. District Judge Paul Grimm ruled in January that parts of the law appear to encroach on the First Amendment and granted a preliminary injunction to prevent the state from enforcing those provisions.
At issue is a requirement for online platforms to create a database identifying the purchasers of online political ads and how much they spend. The law, written to catch ads in smaller state and local elections, applies to digital platforms with 100,000 or more monthly U.S. visitors.
Grimm noted that the 100,000 threshold makes the Maryland law very broad when compared to a similar law passed in New York, which applies to digital platforms with at least 70 million monthly visitors. Grimm said Maryland's law is so sweeping that it covers not just Facebook and other social media sites exploited by foreign operators in 2016, but also many smaller and regional news websites. Washington state and California have also passed updated election transparency laws.
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The newspapers argue the law amounts to the government telling the press what to publish, which violates the First Amendment. They also say the law won't prevent the kind of foreign interference seen during the 2016 election, when free postings on social media — not paid political ads on newspaper websites — were the primary means used to try to sow discord in the U.S. electorate.
"It compels newspapers to publish, regulates far more speech — and speakers — than necessary, and does nothing to combat actual foreign influence in our elections," said Seth Berlin, an attorney representing the newspapers.
But Maryland argues that the law does not infringe on the newspapers' right to exercise their editorial control and judgment.
"These modest burdens do not outweigh the State's important interests in electoral transparency, deterring corruption, enforcing the substantive requirements of the campaign finance laws, and protecting against foreign meddling in the State's elections," Assistant Attorney General Andrea Trento wrote in a legal brief.
The bill became law without the signature of Gov. Larry Hogan, who commended the law's goals, but said he had concerns about its constitutionality.
The newspapers also argue that the law would impose a financial burden. Publishers of smaller newspapers say they would be especially hard hit and could be forced to choose between buying expensive software to comply with the law or refusing all online political advertising and losing that revenue.
More than a dozen news organizations and press advocacy groups, including The Associated Press, have filed legal briefs supporting the newspapers' challenge.
But the law has won support from a range of groups, including Common Cause Maryland and the Brennan Center for Justice at New York University's School of Law.
Dan Weiner, senior counsel for the Brennan Center's Democracy Program, said it is "entirely reasonable" to ask newspaper websites to comply with the same disclosure requirements as other online platforms selling political ads.
"Media organizations don't get out of otherwise applicable laws just because they happen to be media organizations," he said.
Maryland Del. Alonzo Washington, the bill's lead sponsor, said it is designed to ensure more transparency in Maryland elections.
"This coalition of newspaper and online media outlets, I think it's concerning that they want more transparency in politics and in government, but when it comes to folks purchasing ads on their websites, they don't think there's a need for transparency," Washington said.
