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The Washington Post v. McManus

United States Court of Appeals, Fourth Circuit

December 6, 2019

THE WASHINGTON POST; THE BALTIMORE SUN COMPANY, LLC, d/b/a The Baltimore Sun; CAPITAL-GAZETTE COMMUNICATIONS, LLC, d/b/a The Capital; CARROLL COUNTY TIMES, LLC, d/b/a Carroll County Times; APG MEDIA OF CHESAPEAKE, LLC, d/b/a The Star Democrat, d/b/a The Cecil Whig, d/b/a The Maryland Independent; COMMUNITY NEWSPAPER HOLDINGS, INC., d/b/a The Cumberland Times-News; OGDEN NEWSPAPERS OF MARYLAND, LLC, d/b/a The Frederick News-Post; GATEHOUSE MEDIA MARYLAND HOLDINGS, INC., d/b/a The Herald-Mail; MARYLAND-DELAWARE-D.C. PRESS ASSOCIATION, INC., Plaintiffs - Appellees,
v.
DAVID J. MCMANUS, JR., Chairman, Maryland State Board of Elections; PATRICK J. HOGAN, Vice Chairman, Maryland State Board of Elections; MICHAEL R. COGAN, Board Member, Maryland State Board of Elections; KELLEY A. HOWELLS, Board Member, Maryland State Board of Elections; MALCOLM L. FUNN, Board Member, Maryland State Board of Elections; LINDA H. LAMONE, State Administrator, Maryland State Board of Elections; BRIAN E. FROSH, Maryland Attorney General, Defendants - Appellants. CAMPAIGN LEGAL CENTER; COMMON CAUSE MARYLAND; BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Amici Supporting Appellant. NEWS MEDIA ALLIANCE; AMERICAN SOCIETY OF NEWS EDITORS; THE ASSOCIATED PRESS; ASSOCIATED PRESS MEDIA EDITORS; ASSOCIATION OF ALTERNATIVE NEWSMEDIA; DOW JONES AND COMPANY, INCORPORATED; THE E. W. SCRIPPS COMPANY; INVESTIGATIVE REPORTING PROGRAM AT UC BERKELEY, Graduate School of Journalism; INVESTIGATIVE REPORTING WORKSHOP AT AMERICAN UNIVERSITY; THE MEDIA INSTITUTE; MPA- THE ASSOCIATION OF MAGAZINE MEDIA; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; THE NEW YORK TIMES COMPANY; ONLINE NEWS ASSOCIATION; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; SOCIETY OF PROFESSIONAL JOURNALISTS; VIRGINIA PRESS ASSOCIATION; NATIONAL ASSOCIATION OF BROADCASTERS; NCTA- THE INTERNET AND TELEVISION ASSOCIATION; INSTITUTE FOR FREE SPEECH, Amici Supporting Appellee.

          Argued: October 30, 2019

          Appeal from the United States District Court for the District of Maryland, at Baltimore. Paul W. Grimm, District Judge. (1:18-cv-02527-PWG)

         ARGUED:

          Andrea William Trento, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore Maryland, for Appellants.

          Seth Daniel Berlin, BALLARD SPAHR LLP, Washington, D.C., for Appellees.

         ON BRIEF:

          Brian E. Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellants.

          Paul J. Safier, Maxwell S. Mishkin, BALLARD SPAHR LLP, Washington, D.C., for Appellees.

          Paul M. Smith, Erin Chlopak, CAMPAIGN LEGAL CENTER, Washington, D.C., for Amici Campaign Legal Center and Common Cause Maryland. Lawrence D. Norden, Ian Vandewalker, New York, New York, Daniel I. Weiner, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, Washington, D.C.; Ira M. Feinberg, New York, New York, Joseph M. Charlet, Karl M. Lockhart, Law Clerk, HOGAN LOVELLS U.S. LLP, Washington, D.C., for Amicus Brennan Center for Justice.

          Allen Dickerson, Tyler Martinez, Zac Morgan, INSTITUTE FOR FREE SPEECH, Alexandria, Virginia, for Amicus Institute for Free Speech.

          Rick Kaplan, Jerianne Timmerman, NATIONAL ASSOCIATION OF BROADCASTERS, Washington, D.C.; Stephen B. Kinnaird, Alex Schulman, PAUL HASTINGS LLP, Washington, D.C., for Amicus National Association of Broadcasters.

          Rick C. Chessen, Neal M. Goldberg, NCTA - THE INTERNET & TELEVISION ASSOCIATION, Washington, D.C.; Howard J. Symons, Jessica Ring Amunson, JENNER & BLOCK LLP, Washington, D.C, for Amicus NCTA - The Internet & Television Association.

          Danielle Coffey, Senior Vice President, NEWS MEDIA ALLIANCE, Arlington, Virginia; Robert Corn-Revere, Chelsea T. Kelly, DAVIS WRIGHT TREMAINE LLP, Washington, D.C., for Amici News Media Alliance and 16 Media Organizations.

          Bruce D. Brown, Katie Townsend, THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C.; Kevin M. Goldberg, FLETCHER HEALD & HILDRETH, Arlington, Virginia, for Amici American Society of News Editors, Associated Press Media Editors, and Association of Alternative News Media.

          Bruce Sanford, Mark I. Bailen, BAKER & HOSTETLER, Washington, D.C., for Amicus Society of Professional Journalists. Mickey Osterreicher, NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION, Athens, Georgia, for Amicus National Press Photographers Association.

          Joseph Weissman, DOW JONES & COMPANY, INC., New York, New York, for Amicus Dow Jones & Company, Inc. Dana Green, THE NEW YORK TIMES COMPANY, New York, New York, for Amicus The New York Times Company.

          David M. Giles, Vice President/Deputy General Counsel, THE E.W. SCRIPPS COMPANY, Cincinnati, Ohio, for The E.W. Scripps Company.

          Brian Barrett, Assistant General Counsel, THE ASSOCIATED PRESS, New York, New York, for Amicus The Associated Press.

          Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.

          WILKINSON, CIRCUIT JUDGE:

         A Maryland law requires newspapers, among other platforms, to publish on their websites, as well as retain for state inspection, certain information about the political ads they decide to carry. This case asks, at bottom, whether these terms can be squared with the First Amendment. For the reasons discussed below, we agree with the district court that they cannot. While Maryland's law tries to serve important aims, the state has gone about this task in too circuitous and burdensome a manner to satisfy constitutional scrutiny.

         I.

         In 2016, Donald Trump was elected the forty-fifth President of the United States. In the months that followed, a growing consensus emerged that Russian nationals had attempted to interfere in the presidential election through a sustained disinformation campaign carried out on social media and other online platforms. Prompted by these revelations, a number of states looked to amend their election laws to better protect against foreign meddling. Maryland was one of them and, in May 2018, the state passed the Online Electioneering Transparency and Accountability Act (the "Act").

         Maryland has long regulated campaign-related speech. Before the Act took effect, though, the state principally regulated direct participants in the political arena. Most relevant here, Maryland imposed certain disclosure and recordkeeping obligations on political speakers looking to influence a given election cycle. Md. Code Ann., Elec. Law §§ 13-401, 13-404, 13-304, 13-306, 13-307, 13-221. First, the state required "campaign material" to include an "authority line" identifying the person or group behind a political advertisement.[1] Second, Maryland mandated that "political committees," or similar persons making independent expenditures above a specific dollar amount, must collect and report to the Maryland Board of Elections basic information about their donors and related expenses.[2] Before the Act, these provisions applied only to purchasers of TV, radio, and print advertising.

         Following the 2016 election, however, Maryland concluded that this disclosure-and-recordkeeping regime was inadequate. See Washington Post v. McManus, 355 F.Supp.3d 272, 281-282 (D. Md. 2019). In particular, legislators determined that Maryland's existing campaign finance regulations largely failed to cover the internet. And this presented a problematic blind spot. For one, the 2016 election marked an important shift in how campaigns were waged, with a surge in spending on online political advertising by candidates and political organizations. See J.A. 117 (detailing eightfold increase from 2012). Moreover, 2016 also involved pervasive attempts by foreign nationals to influence American elections by way of the internet. See J.A. 119-20 (describing internal investigations at Facebook, Twitter, and Google). These efforts were particularly prevalent in Maryland, which by some accounts was one of the top three most targeted states in 2016. See J.A. 118-19.

         Against this backdrop, Maryland decided to develop legislation that would bolster the state's campaign finance regulations. With a particular eye toward combatting foreign meddling, the state made two main changes to its laws. See Washington Post, 355 F.Supp.3d at 281-82. First, Maryland broadened its extant disclosure-and-recordkeeping regulations to include online advertisements. Accordingly, the campaign finance regime that previously applied only to TV, radio, and print was expanded to also include online political ads. Id. at 282. These provisions, which applied directly to ad purchasers, are not challenged here. Second, the Act extended Maryland's campaign finance laws to include for the first time "online platforms." Id. at 282-83. An "online platform" under the Act is defined in terms of both its size and its speech, picking up essentially any public website in the state that reaches a certain circulation (100, 000 unique monthly visitors) and receives money for "qualifying paid digital communications" (which are, in short, political ads). Md. Code Ann., Elec. Law § 1-101(dd-1). The distinctive feature of these sections is that their onus falls on the websites themselves, not the political speakers. These provisions are the subject of this lawsuit.

         The Act imposes two sets of disclosure obligations on "online platforms" operating in Maryland. First, there is a "publication requirement." Under this provision, online platforms must post certain information about the political ads on their websites. Id. § 13-405(b). In the main, within 48 hours of an ad being purchased, platforms must display somewhere on their site the identity of the purchaser, the individuals exercising control over the purchaser, and the total amount paid for the ad. They must keep that information online for at least a year following the relevant election. Second, there is an "inspection requirement." Under this part, platforms must collect records concerning their political ad purchasers and retain those records for at least a year after the election so that the Maryland Board of Elections can review them upon request. Id. § 13-405(c). As the district court explained, the "publication requirement and state inspection requirement are functionally distinct, but they operate as part of a single scheme." Washington Post, 355 F.Supp.3d at 283. To that end, both requirements attach when (i) the buyer notifies a platform that its ad constitutes a "qualifying paid digital communication[]" under the Act, Md. Code Ann., Elec. Law § 13-405(a)(1), and (ii) supplies the platform with the necessary information that it will then have to post and retain as required by the publication and inspection parts of the Act, id. § 13-405(d)(1).

         The Act took effect in July 2018 without the signature of Maryland Governor Larry Hogan. At the time, Governor Hogan feared the Act raised "serious constitutional concerns" because, in large part, it "would compel speech by news outlets." J.A. 111-12. That August, a collection of news outlets operating in the state (the "Publishers") filed for a preliminary injunction to prevent the platform-specific parts of the Act from going into effect.[3] As relevant here, the Publishers argued that the Act's publication and inspection requirements violated the First ...


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