Maryland will begin to regulate political ads on Facebook and other social media sites beginning July 1 after Gov. Larry Hogan on Friday allowed a bill to become law despite his reservations that the measure could be found unconstitutional.
Facebook officials have called the law a “national model” and have been urging other states to approve the same measure. But a group representing Maryland news organizations, including The Baltimore Sun, believes the new regulations violate the First Amendment’s free-speech protections.
The bill, approved by the General Assembly in April, requires social media platforms and websites with significant traffic to track all political ads and record which users are being targeted. State election officials would be able to access that data to detect foreign interference or track bad actors.
The Republican governor, who relies heavily on Facebook to deliver political messages, could have chosen to veto the law but did not. In a letter to legislative leaders, Hogan wrote that he supported many of the law’s goals: documenting who is behind political ads on social media, barring foriegn currency from use in Maryland elections and empowering the Board of Elections to investigate complaints about online ads or voter suppression.
But Hogan said he feared the law may not withstand a constitutional challenge, which has been threatened by the Maryland-Delaware-D.C. Press Association.
The press association has said the law’s provision requiring websites to publish databases of political ad purchases violates free speech provisions of the First Amendment because the government cannot force newspapers to print anything. Maryland Attorney General Brian E. Frosh’s office has determined the law is constitutional because it regulates advertising, not editorial speech.
“I am cognizant that there are opposing views on this issue, but ultimately I cannot sign a piece of legislation that could allow the government to coerce news outlets protected by the First Amendment to publish certain material,” Hogan wrote.
The governor said he was also concerned the law was too vague in regulating online posts that “relate” to a candidate, a provision he said might infringe on constitutionally protected political speech.
The law “casts a very wide net and I am concerned that groups that are simply exercising their constitutional rights of free speech will unsuspectingly be subject to regulation and possible criminal penalties for merely expressing a political opinion,” Hogan wrote. “Should the legislation survive what I expect will be a constitutional challenge on these grounds, I am hopeful that the General Assembly will remedy these deficiencies next session.”
Maryland lawmakers passed the law in response to Russian interference in the 2016 election. In February, special counsel Robert S. Mueller filed charges against Russian citizens and companies over allegations that they used social media to meddle in the nation’s political process. Facebook, in particularly, has been under national and worldwide pressure to better police itself.
“It’s an absolute no-brainer of a bill, and I hope Congress takes Maryland’s lead,” said Sen. Craig Zucker, a Montgomery County Democrat who sponsored the bill. “It’s transformational when it comes to transparency and accountability for online political ads.”
Rebecca Snyder, executive director of the state press association, said it’s possible the organization or other groups will challenge the law in court.
“While we were hopeful for an outright veto, we appreciate that the governor understands our concerns about the constitutionality of this bill and precedent this sets to compel speech by private individuals,” Snyder said in a statement.
Also on Friday, Hogan vetoed six lower-profile bills and let 53 others become law without his signature.
Four of the bills vetoed by Hogan were backed by labor groups. The day before, Hogan vetoed three other bills also pushed by labor groups.
Another bill vetoed by Hogan would have permanently prevented the comptroller from serving as chair of the state’s pension board. Comptroller Peter Franchot, a Democrat who is allied with Hogan, has called the bill retribution from the Democratic-dominated legislature.
The last bill vetoed by Hogan would have set up regulations for a proposed hyperloop system of underground tunnels beneath the Baltimore-Washington Parkway. The Hogan administration granted permission to billionaire Elon Musk to dig the tunnels by approving the project using the same process for more simple underground projects such as burying telephone or electricity lines beneath roadways.
The General Assembly will not have an opportunity to consider overriding Hogan’s vetoes. Any vetoes issued in the final year of the four-year term cannot be considered in January by newly elected lawmakers.