The US Court of Appeals for the Fourth Circuit on Friday affirmed a lower court decision to strike down a Maryland law regulating the publication of online political ads. Writing for a unanimous three-judge panel, Circuit Judge J. Harvie Wilkinson, III described the law as a “compendium of traditional First Amendment infirmities.”
The statute at issue is the Online Electioneering Transparency and Accountability Act. Pursuant to the Act, an “online platform” that hosts a political ad must publish on its site i) the identity of and contact information for the ad purchaser; ii) the identity of the person or persons exercising control over the activities of the ad purchaser; and iii) the total amount paid for the ad. The Act also requires that the ad publishers retain detailed records of each ad for possible inspection by the state board of elections. Those records must include “the candidate or ballot issue to which the [ad] relates and whether the [ad] supports or opposes that candidate or ballot issue,” “an approximate description of the geographic locations where the [ad] was disseminated” and “an approximate description of the audience that received or was targeted to receive” the ad.
In the opinion issued Friday, the Fourth Circuit declared the Act unconstitutional. Finding that it targets political speech for regulation and that it “forces news publishers to speak in a way they would not otherwise” by mandating disclosure of detailed ad information, Wilkinson voiced particular concern over the law’s “chilling effect.” He wrote that “[m]any political advocates today … opt for anonymity in hopes their arguments will be debated on their merits rather than their makers.” The court added that the law has already chilled the speech of traditional publishers of online political ads, citing Google’s decision to stop accepting such ads in Maryland.
Turning to the requirement that the ad publishers, which include news organizations, release records to the state board of elections, the court pointed to the apparent absence of “any readily discernable limits on the ability of government to supervise the operations of the newsroom.” Furthermore, the court questioned the utility of the law, noting that while its stated purpose is to guard against foreign intervention in US elections, Maryland has been unable to produce evidence that foreign nationals have tried to influence US elections through paid political ads on news sites.
