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,
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
from the United States District Court for the District of
Maryland, at Baltimore. Paul W. Grimm, District Judge.
William Trento, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore Maryland, for Appellants.
Daniel Berlin, BALLARD SPAHR LLP, Washington, D.C., for
E. Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellants.
J. Safier, Maxwell S. Mishkin, BALLARD SPAHR LLP, Washington,
D.C., for Appellees.
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.
Dickerson, Tyler Martinez, Zac Morgan, INSTITUTE FOR FREE
SPEECH, Alexandria, Virginia, for Amicus Institute for Free
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.
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
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.
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.
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
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.
M. Giles, Vice President/Deputy General Counsel, THE E.W.
SCRIPPS COMPANY, Cincinnati, Ohio, for The E.W. Scripps
Barrett, Assistant General Counsel, THE ASSOCIATED PRESS, New
York, New York, for Amicus The Associated Press.
WILKINSON, MOTZ, and FLOYD, Circuit Judges.
WILKINSON, CIRCUIT JUDGE:
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
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").
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. 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. Before the Act, these provisions applied
only to purchasers of TV, radio, and print advertising.
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.
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.
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).
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. As relevant here, the Publishers argued
that the Act's publication and inspection requirements
violated the First ...