Legal Alert

Fourth Circuit Rules Maryland Online Political Ad Law Unconstitutional

December 9, 2019

The U.S. Court of Appeals for the Fourth Circuit has affirmed a victory by a coalition of news organizations that publish in Maryland in their challenge to a state law that would have placed significant burdens on them as platforms hosting online political advertisements. The court held that the obligations the law imposes on the news organizations’ websites are contrary to the First Amendment.

The Maryland Online Electioneering Transparency and Accountability Act, which took effect in July 2018, differs from traditional regulation of political advertising because it regulates the platforms hosting political ads in addition to the ad purchasers. The Act would have required the newspaper websites to:

(1) publish information about political ads within 48 hours of the purchase of an ad, including proprietary details about ad pricing;

(2) undertake complex and costly new recordkeeping obligations, with the State being able to demand records on 48 hours’ notice; and

(3) face the risk of injunctions and possible civil or criminal sanctions for hosting noncompliant ads, with no guaranteed notice or opportunity to object.

The plaintiffs challenging the Act ranged from publishers of large newspapers like The Washington Post and The Baltimore Sun to publishers of smaller papers throughout Maryland, as well as the regional press association that represents most of the newspapers in the state. The district court found earlier this year that the Act was likely unconstitutional under the First Amendment and entered a preliminary injunction to block its enforcement against plaintiffs. The State appealed.

The Fourth Circuit unanimously affirmed the district court in a ruling issued December 6. In a 30-page opinion authored by Judge J. Harvie Wilkinson III, and joined by Judges Diana Gribbon Motz and Henry F. Floyd, the appeals court held that “the lodestar for the First Amendment is the preservation of the marketplace of ideas” and that “each banner feature of the Act—the fact that it is content-based, targets political expression, and compels certain speech—poses a real risk of either chilling speech or manipulating the marketplace of ideas.” The court further explained that, because the Act imposes obligations on third-party publishers of political ads—and not only on the political speakers themselves—it differs from regulatory regimes that have been held to be constitutional in the past. That is because the Act creates a disincentive for platforms to publish political ads, as opposed to other kinds of advertising content, at great potential cost to political debate.

Unlike the district court, which concluded that the Act is subject to “strict scrutiny” rather than “exacting scrutiny,” the Fourth Circuit opted “not to decide whether strict or exacting scrutiny should apply” because “the disparity between Maryland’s chosen means and purported ends is so pronounced” that “the Act fails even the more forgiving standard of exacting scrutiny.”

The court noted its “respect” for “how states choose to carry out their responsibilities” in overseeing campaigns and elections. But, the court concluded, “that respect has bounds—and here, Maryland has crossed them. Despite its admirable goals, the Act reveals a host of First Amendment infirmities: a legislative scheme with layer upon layer of expressive burdens, ultimately bereft of any coherent connection to an offsetting state interest of sufficient import.”

Note: The news media plaintiffs were represented by Ballard Spahr attorneys Seth D. Berlin, Paul Safier, and Max Mishkin from the firm’s Media and Entertainment Law Group.

Attorneys in Ballard Spahr’s Media and Entertainment Law Group are dedicated to supporting the free press and the First Amendment rights of groups and individuals. The Group helps clients navigate challenging media law issues across all platforms and industries.

Copyright © 2019 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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