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Federal appeals court rejects Maryland online political ad law that sought information from digital publishers

A Maryland law aimed at extending the state’s campaign finance oversight into online political ads goes too far, a federal appeals court has ruled. In this file photo, some of the Facebook and Instagram ads linked to a Russian effort to disrupt the American political process and stir up tensions around divisive social issues, released by members of the U.S. House Intelligence committee, are shown in Washington.
A Maryland law aimed at extending the state’s campaign finance oversight into online political ads goes too far, a federal appeals court has ruled. In this file photo, some of the Facebook and Instagram ads linked to a Russian effort to disrupt the American political process and stir up tensions around divisive social issues, released by members of the U.S. House Intelligence committee, are shown in Washington. (Jon Elswick/AP)

A Maryland law aimed at extending the state’s campaign finance oversight into online political ads goes too far, a federal appeals court ruled.

The Online Electioneering Transparency and Accountability Act, passed in 2018, would require newspapers and other media platforms to publish information on their websites about the political ads they display. The state law followed revelations about a Russian disinformation campaign in the 2016 presidential election, including thousands of ads a Russian internet agency created or promoted on Facebook.

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A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, lauded the intent of the Maryland law, but said in an opinion Friday that some of its terms encroach on the First Amendment.

“This case asks, at bottom, whether these terms can be squared with the First Amendment,” Judge J. Harvie Wilkinson wrote. “For the reasons discussed below, we agree with the district court that they cannot. While Maryland’s law tries to serve important aims, the state has gone about this task in too circuitous and burdensome a manner to satisfy constitutional scrutiny.”

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The law’s effective date was July 1, 2018. The next month, media organizations including The Baltimore Sun and The Washington Post, filed for a preliminary injunction in U.S. District Court to block portions of it from taking effect. The district judge temporarily blocked the enforcement of those parts of the law.

Republican Gov. Larry Hogan also expressed concern about the constitutionality of the act, which he allowed to become law without his signature.

The appeals court said it understood what Maryland’s General Assembly was trying to do.

“The changing nature of elections and the novel technological challenges accompanying them have made the states’ managerial tasks more difficult,” Wilkinson wrote. “How states choose to carry out their responsibilities has long merited our respect. But that respect has bounds — and here, Maryland has crossed them."

The law’s disclosure requirements would apply to any online platform with 100,000 unique monthly visitors that receives money for political ads. The platforms would be required to display — within 48 hours of an ad being purchased — information such as the identity of the buyer and the amount paid. The outlets would need to retain the information for state inspection.

Shortly before the act was to take effect, Google said it would stop accepting state and local election ads in Maryland as a result. The company said its systems were not built to collect and provide the information quickly enough to satisfy the act.

The Maryland-Delaware-D.C. Press Association, a plaintiff in the case, was gratified by the appeals court’s ruling, spokeswoman Rebecca Snyder said.

Appeals court opinion

“MDDC and our members believe in fair and open elections. This law was trying to fix the very real problems posed by Facebook’s lax political advertising practices by burdening news outlets that were never part of the problem,” Snyder said. “The courts reaffirmed that it is unconstitutional to compel the news media and other private entities to publish information. It’s a clear ruling that gets to the heart of our concerns.”

The state attorney general’s office said it was reviewing the decision and had no immediate comment.

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