A Maryland law approved by state legislators to prevent foreign interference in local elections is unconstitutional because it violates the First Amendment, a federal appeals court has ruled.
A three-judge panel of the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals found that the law targets political expression and compels certain speech, and affirmed a lower court’s ruling to strike down the law.
Circuit Judge J. Harvie Wilkinson III wrote that the changing nature of elections and novel technological challenges have made it harder for states to manage elections. But, he wrote, the legislation approved by Maryland’s General Assembly in 2018 went too far.
“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,” Wilkinson wrote in the ruling released Friday.
The law’s sweeping scope sparked a First Amendment outcry from more than a half dozen newspapers, including The Washington Post and The Baltimore Sun.
Newspapers’ arguments
The newspapers and the Maryland-Delaware-D.C. Press Association argued in a lawsuit the the statute violates the First Amendment because it requires them to collect and self-publish information about the sponsors of online political ads. It also requires them to keep records of the ads for inspection by the state Board of Elections.
“In the end, 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,” Wilkinson wrote.
In January, U.S. District Judge Paul Grimm ruled that parts of the law appeared to encroach on the First Amendment and granted a preliminary injunction to prevent the state from enforcing those provisions.
One provision required online platforms to create a database identifying the purchasers of online political ads and how much they spend. The law, written to catch ads in smaller state and local elections, applied to digital platforms with 100,000 or more monthly visitors.
That made the threshold in the Maryland law very broad when compared to a similar law in New York, which applies to digital platforms with at last 70 million monthly visitors.
The newspapers contended the law amounted to the government telling the press what to publish, which violates the First Amendment. They also argued the law wouldn’t prevent the kind of foreign interference seen during the 2016 election, when free postings on social media — not paid political ads on newspaper websites — were the primary means used to try to sow discord in the U.S. electorate.
More than a dozen news organizations and press advocacy groups, including The Associated Press, filed legal briefs supporting the newspapers’ challenge.
State arguments
The state argued that the law does not infringe on the newspapers’ right to exercise their editorial control and judgment.
“These modest burdens do not outweigh the State’s important interests in electoral transparency, deterring corruption, enforcing the substantive requirements of the campaign finance laws, and protecting against foreign meddling in the State’s elections,” Assistant Attorney General Andrea Trento wrote in a legal brief.
Raquel Coombs, a spokeswoman for Maryland Attorney General Brian Frosh, wrote in an email Monday that the attorney general’s office was reviewing the decision.