On Friday, December 6, the Fourth Circuit Court of Appeals blocked a Maryland online speech law in The Washington Post, et al. v. McManus. In the ruling, the court affirmed a previous district court ruling that the law “singles out one particular topic of speech — campaign-related speech — for regulatory attention” and therefore violates the First Amendment.
Maryland’s Online Electioneering Transparency and Accountability Act initially became law in May 2018. It was intended to target the issue of foreign interference in U.S. elections. The law, not signed by Governor Larry Hogan, was enacted by a veto-proof majority. However, despite this support in Maryland’s legislature, the act quickly received backlash from a number of media outlets and First Amendment proponents.
The law required media outlets with more than 100,000 unique monthly visitors to publish names and contact information for those who purchased online political advertisements. Outlets also had to publish other relevant information about the advertisements, including the price paid for any advertisement.
The Washington Post was among eight other newspapers that challenged the law in court. Prior to being brought before the Fourth Circuit Court of Appeals by the state, the act was first struck down by a district court. The district court in part ruled that the act placed a burden on publishers.
In its ruling on Friday, the Fourth Circuit rejected Maryland’s argument that publishers can avoid any potential burden by simply choosing to opt out of agreements to publish political advertisements. The ruling stated, “Another way of saying ‘opt-out’ is ‘stop speaking’… To contend that news outlets forgo some of their free speech rights by accepting political speech turns the First Amendment on its head and does nothing to salvage the act.”
The ruling also noted that foreign interference largely occurred on social media platforms like Facebook and Instagram, not news outlets that were included in the act. The court instructed that “in light of the First Amendment burdens here, Maryland must muster some concrete proof to justify the act’s capacious scope.”
Twenty organizations, including the News Media Alliance, the Reporters Committee for Freedom of the Press, and the Institute for Free Speech, filed amicus briefs in support of the legal challenge by the newspapers.
In a press release following the Fourth Circuit’s ruling, President of the Institute for Free Speech David Keating said, “The Fourth Circuit recognized what should have been clear all along. You can’t fight foreign propaganda by violating the First Amendment. Congress and other states should take note: the First Amendment protects online publishers from crushing regulatory burdens.”