Breaking News: The Sky Is Falling, and, According to Washington Post v. McManus, So Was First Amendment Protection Under Maryland’s Online Electioneering Transparency and Accountability Act

By Alan Sternstein

New York Times v. Sullivan, a jurisprudential monument to freedom of the press, confirmed the core role of the press under the First Amendment “‘to secure ‘the widest possible dissemination of information,’” in order “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”  376 U.S. 254, 266, 269 (1964).  Ironic and disappointing it is that the Washington Post, a pillar of the press, would lead the charge among press interests to invalidate Maryland laws requiring certain online platforms to disclose and report the sources and dollar amounts of online, not printed, political advertising.  It did so, moreover, making dubious claims that requiring such disclosures is a material infringement on editorial control and judgment, compels political messages, and imposes, on account of related recordkeeping requirements, an unacceptable burden on press operations.  Accepting these contentions, the Fourth Circuit’s recent decision in Washington Post v. McManus, No. 19-1132 (4th Cir. decided Dec. 6, 2019) (“Washington Post”),[1] invalidated Maryland’s Online Electioneering Transparency and Accountability Act (“Act”), codified at Md. Code Ann., Elec. Law § 13-405.  Notably, none of the plaintiffs in Washington Post or any of the amici supporting them was a person who sought or planned to engage in online political advertising or an organization supported by such persons.

Background

Maryland, like the federal government and many states, has long imposed certain disclosure and recordkeeping obligations related to political advertising in election campaigns.  Before the Act, these provisions applied only to purchasers themselves of television, radio and print advertising.  Md. Code Ann., Elec. Law §§ 13-221, 13-304 et seq., and 13-401 et seq.  Following the 2016 election, however, the Maryland legislature concluded, after taking testimony, that its election laws were inadequate, because they largely failed to cover the internet.  It is beyond peradventure that the 2016 election marked a rapid and sea change in how election campaigns were conducted and influenced, a change that, according to the Mueller Report and others, continues into the present.  Spending for online political advertising by candidates and political organizations surged.  Moreover, 2016 also involved pervasive attempts by foreign nationals and governments to influence American elections through the internet, using fake identities to purchase political advertising, including negative political advertising.[2]

In May 2018, with a particular, but not exclusive, eye toward exposing and inhibiting foreign interference, as well as informing Maryland voters, the Maryland legislature’s Act made two main changes to the state’s election laws.  First, the Act broadened disclosure and recordkeeping requirements to include online advertisements, in addition to advertising on broadcast (television and radio) and in print platforms.  These provisions applied only to political advertising purchasers and were not challenged in Washington Post.  Second, the Act extended Maryland’s campaign finance laws to impose certain obligations on “online platforms” themselves, not just political advertisers using them.  An “online platform” under the Act was essentially any public website accessible in the state that reaches a certain “subscribership” (100,000 unique monthly visitors) and receives money for political advertising.

The Act imposed two disclosure requirements on such online platforms.  First, online platforms were required to display somewhere on their website the identity of the political advertising purchaser, the individuals exercising control over the purchaser, and the total amount paid for the advertising.  Identity and control information is required to be obtained from the advertising purchasers, not independently by the platforms, and was not required independently to be verified by the platforms.  The Act required this information to remain publically accessible online for at least a year following the relevant election.  Second, the Act required online platforms to maintain records (hereinafter “Coverage Records”) of information within a platform’s own knowledge and control for each online political advertisement run on the platform.  This information included the candidate or issue to which the advertisement related, the dates and times of its run, the “approximate” geographic coverage of the advertisement, and a “digital copy” of the advertisement.

Analysis

A unanimous Fourth Circuit panel viewed the Act, as did the District Court, as “a content-based law that targets political speech and compels [online] newspapers, among other online platforms, to carry certain messages on their websites.”  Slip Op. at 9 (emphasis added).  That is to say, according to the Fourth Circuit, the compelled disclosure by online platforms of the identity of their political advertisers, as well as other limited information about the advertisers’ campaign expenditures, was a form of not just compelled speech but also compelled political speech.  Slip Op. at 6-7, 10-12.  In addition, although platforms were not required to provide public access on their websites or otherwise to Coverage Records, because this information was subject to inspection by state regulators, the Fourth Circuit considered this disclosure requirement another form of political speech that the Act compelled.  Slip Op. at 11-12.  Indeed, according to the court, the Act’s compelled speech materially infringed on editorial control and judgment with respect to the content of platforms.  Slip Op. at 8-9, 18.

The information disclosures that the Act compelled were, of course, not information about the identity of an online platform, those who controlled it, or information about the platform’s views on any candidate or issue of public concern. Neither the required disclosure of advertiser identity and advertising expenditures nor the Coverage Records said anything about a platform itself for or against a particular candidate or a public issue or concern.  Importantly, too, the disclosures did not operate to restrain any speech.[3]   Instead, the triviality of the contention that online platforms were nevertheless being compelled to carry political “messages” should be apparent on its face.  According to the Fourth Circuit, the statement “The net worth of Joe Biden, a candidate for the Democratic presidential nomination is $X.xx Million,” would be a significant political message.   And the notion that official but not public access to regulatory records constituted officially compelled speech is novel, to say the least, and mindboggling as to the extent it would bring federal, state and local regulatory recordkeeping requirements under the First Amendment’s protective umbrella.  Worse, because of the court’s characterization of the disclosure requirements as the compulsion of political speech and as a material limitation on editorial discretion, the Fourth Circuit left standing the District Court’s ruling that the Act’s disclosure requirements, as applied to online platforms, constituted content-based discrimination, the constitutionality of which was to be assessed using the so-called “strict scrutiny” test, which the Fourth Circuit itself characterized as, “in practice, is virtually impossible to satisfy.”  Slip Op. at 23.

Let’s be clear; the notion that the Act’s requirements involved any content-based discrimination against online platforms qua (in their capacity as) online platforms, as opposed to against political speech itself, is at least questionable.  The Act applied to all online platforms of a size, specified in noncontent-based terms of subscribership, not just news or press platforms.  Only if a platform of the requisite subscribership, regardless of any other characteristic of the platform, accepted political advertising, was that platform required to make the identity of advertisers and the amounts of their purchases accessible online for one year and to keep Coverage Records.  To be sure, there was still content-based discrimination to certain forms of speech, political speech, obviously.  But that the Act ran roughshod over the First Amendment interests of press and other online platforms, as is the overall tone of the Fourth Circuit’s opinion, is misleading and overstated.

Likewise hyperbolic was the Fourth Circuit’s characterization of the Act as a “compendium of First Amendment infirmities,” Slip Op. at 9, including the required “post[ing]” and “displaying somewhere on [online platforms’] site[s]” of political speech, Slip Op. at 6, 11, and “publish[ing] additional web pages.”  Slip Op. at 16.  It is critical to understand what “posting,” “displaying,” and “publishing” mean in the digital, as opposed to hard print, context.  First, the Act did not require any posting, displaying or publishing of Coverage Records.  More importantly, posting, displaying or publishing does not mean providing numerous oversized computer monitors in Times Square or the windows of platform offices continuously displaying the subject information that would be accumulated over time.  Nor, for example, does it mean showing all that information on a platform’s home and immediately following pages, before any visitor to the page can get to the platform’s own content.  Instead, it means simply prominent links on a platform page that would allow interested persons to find and access subject information electronically stored somewhere on a server.  The portion of electronic resources, measured in terms of electronic storage space, consumed by the Act’s requirements surely pales in comparison to, for example, the Washington Post’s own electronic storage of archived editions of its newspapers.  Indeed, the Fourth Circuit acknowledges “[t]he absence of space and time limitations on the internet” because of digital technology.  Slip Op. at 20.  At least in relative terms, such posting, displaying or publishing was just not the big deal that the court made it out to be.

Similarly hyperbolic is the Fourth Circuit’s argument that treatment of the Act’s requirements as undue content-based incursions on speech and, therefore, presumptively invalid served “to ensure that the marketplace of ideas does not deteriorate into a forum for the subjects of state-favored speech.”  Slip Op. at 10.  Here, however, in the Act’s own terms, is the literal content of the “state-favored speech” that the Fourth Circuit viewed as such a threat to the marketplace of ideas as to warrant the court’s treatment of the Act:

(6) [T]he online platform shall maintain the following records:

(i) for each qualifying paid digital communication purchased by a political committee:

  1. the name of the person and any contact information for the person required by the State Board, of the political committee;
  2. the treasurer of the political committee; and
  3. the total amount paid by the purchaser to the online platform for the placement of the qualifying paid digital communication;

(ii) for each qualifying paid digital communication purchased by a person other than a political committee or an ad network:

  1. the name of the person and any contact information for the person required by the State Board, of the person;
  2. the identity of the individuals exercising direction or control over the activities of the person, including the chief executive officer or board of directors, if applicable; and
  3. the total amount paid by the purchaser to the online platform for the placement of the qualifying paid digital communication; and

(iii) for each qualifying paid digital communication purchased by an ad network:

  1. the contact information for the ad network; or

  2. a hyperlink to the ad network’s website where the contact information is located.

Md. Code Ann., Elec. Law §13-405(b)(6).  Just what opinion or message this required “speech” expresses or what opinions or messages it threatens leaves one to wonder.  What is clear, however, is that the “speech” did provide significant objective fact information by which the public could have apprised itself of who purports to be speaking and what effort, measured in advertising expenditures, they are expending to do so on online platforms that the Act covered.  Plainly, this was no more dangerous to the marketplace of ideas than the Surgeon General’s warning required in tobacco advertising and was surely as useful to an informed electorate as that warning is to public health.

Finally, but not least, it may also be questioned whether any of the plaintiffs, all online platform interests, not political advertisers themselves, had standing to bring any First Amendment challenge to the Act.  At best, quite arguably, plaintiffs satisfied this fundamental constitutional gatekeeping requirement only insofar as the Act worked a material infringement on the editorial control and judgment of platform operators or only insofar as the Act compelled the expression of any political “message.”  What the Fourth Circuit indulged, however, was really the morphing by plaintiffs and amici of an administrative burden, in the nature of required and publicly accessible storage of objectively factual information, into a constitutional burden.[4]  There was no meaningful or material editorial infringement or compelled political speech, much less requirements deserving of strict scrutiny under the First Amendment.  Although the Fourth Circuit also noted that the Act’s burdens could lead some online platforms to decline accepting political advertising, thereby, reducing available channels for political communication, even if that were true (It was surmise, at best.[5]), that would have been an injury to political speakers, not online platforms themselves, and, as noted, such speakers were not in any way before the court.

Returning to the applicable standard of scrutiny, here, too, the District Circuit’s ruling, left standing on appeal, that strict scrutiny applied was infirm, at best, and, frankly, wrong and the Fourth Circuit’s dodging the ruling questionable.  Indeed, both the District Court and the Fourth Circuit, perhaps tacitly acknowledging this, take the tack of arguing that the Act was unconstitutional, whether tested under strict or exacting scrutiny.  Slip Op. at 23 (“[W]e decline to decide whether strict or exacting scrutiny should apply to a disclosure law like the one here because we hold that the Act fails even the more forgiving standard of exacting scrutiny.”).  Upon any reasonable reading of Supreme Court precedent, however, it is apparent that the applicable standard is the more forgiving exacting scrutiny.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court extensively addressed the constitutionality of election regulation provisions in the Federal Election Campaign Act of 1971 (“FECA”).  FECA required disclosures of information, in particular, the identity of political speakers and information about political contributions and campaign expenditures, in the context of election regulation.  The Court noted that it “long [had] recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest.”  424 U.S. at 64.  It ruled, however, that “[s]ince NAACP v. Alabama, [357 U. S. 449 (1958),] we have required that the subordinating interests of the State must survive exacting scrutiny.  We also have insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.”  Id. (emphasis added).

The Supreme Court’s constitutional assessment of the Bipartisan Campaign Reform Act of 2002 (“BCRA”) in McConnell v. FCC, 540 U.S. 93 (2003), which the Fourth Circuit barely mentions (Slip Op. at 21), supports well beyond Buckley, the application of exacting, not strict,  scrutiny to election disclosure requirements.  BCRA augmented the disclosure requirements under FECA in four respects:  (i) a person who makes disbursements totaling more than $10,000 annually for the direct costs of producing and airing electioneering communications must file a statement with the FEC identifying all persons sharing the costs of the disbursements; (ii) a person who makes independent campaign expenditures of $1,000 or more during the 20-day period immediately preceding an election must file an identifying statement with the FEC; (iii) “electioneering communications,” as defined in BCRA, “authorized” by a candidate or the candidate’s political committee must clearly identify the candidate or committee in connection with the communications and, if not so “authorized,” must, in that connection, identify who is paying for the communication and that it is not “authorized;” and (iv) broadcasters, through an amendment to the Communications Act of 1934, were statutorily required to keep publicly available records identifying persons making politically related broadcasting requests, whether regarding a candidate for public office or a political or other issue of national importance.  All of these disclosures would, according to the Fourth Circuit in Washington Post, constituted compelled political speech and content-based discrimination, because they target such speech.

Relying on Buckley, McConnell upheld each of these disclosure requirements, applying only, in doing so, exacting scrutiny.  In particular, in upholding the identity disclosure requirements for persons paying more than $10,000 annually for “electioneering communications,” the Court emphasized the compelling informational objective of election laws,  Quoting  the two-judge per curiam opinion of the three-judge district court below, the Court observed that BCRA’s challengers “never satisfactorily answer the question of how ‘uninhibited, robust, and wide-open’ speech can occur when organizations hide themselves from the scrutiny of the voting public” and “ignore[] the competing First Amendment interests of individual citizens seeking to make informed choices in the political marketplace.” 540 U.S. at 197, quoting 251 F. Supp. 2d 176, 237 (D.D.C. 2003).  Most importantly, again quoting the district court’s per curiam opinion, the Court stated that the “disclosure requirements are constitutional because they “‘d[o] not prevent anyone from speaking.’”  540 U.S. at 201, quoting 251 F. Supp. 2d, at 241.[6]  For these same reasons, the McConnell Court also upheld BCRA’s identity disclosure requirements applicable to persons making independent expenditures of $1,000 or more during the 20-day period immediately preceding an election.  540 U.S. at 211-12.

The McConnell Court also found constitutional BCRA’s identity disclosure requirement for authorized and unauthorized “electioneering communications.”  According to the Court, the requirement “bears a sufficient relationship to the important governmental interest of ‘shed[ding] the light of publicity’ on campaign financing.”  540 U.S. at 231, quoting Buckley, 424 U.S. at 81 (emphasis added).  In other words, the requirement satisfied exacting scrutiny in support of the election law objective of informing the electorate.

Finally, concerning BCRA’s requirement that television and radio broadcasters maintain publicly available records identifying persons making politically or issue related broadcast requests, the Court addressed and discharged two objections by broadcasters.  First, the Court rejected as insupportable broadcasters’ claims that the recordkeeping requirement was “intolerably burdensome and invasive.”  Id. at 235.  Given that the requirement essentially mirrored FCC recordkeeping regulations that had been in effect for decades without significant broadcaster complaint, the Court was unpersuaded.  Notably, the Court observed in this regard that “[t]he FCC has consistently estimated that its ‘candidate request’ regulation imposes upon each licensee an additional administrative burden of six to seven hours of work per year.”  Id.  So much for plaintiffs’ digital age burdensomeness claim in Washington Post.

The Court also rejected the broadcasters’ constitutional challenge to request disclosures, contending that the requirement, as applied to candidate requests, “fails significantly to further any important governmental interest.”  Id. at 236.  Without considerable discussion, the Court readily found that the statutory requirement, among other interests, would serve to further compliance with BCRA’s and FECA’s disclosure requirements, would allow the public to evaluate the evenhandedness of broadcaster treatment of candidates, and would allow the public to know how much money candidates were paying for broadcast advertising.  Id. at 237.  Given the terms in which the Court couched its discussion of the matter, it is evident that the Court required and found that the disclosure requirement, imposed not on speakers but on broadcast platforms for which speakers did pay, satisfied a standard no greater than exacting scrutiny.

It bears careful note that, even though the Court, expressly or implicitly, by the manner of analysis in its McConnell opinion, applied nothing more than an exacting scrutiny test to each of BCRA’s four added disclosure requirements, all of the requirements involved disclosures only with respect to speakers, not platforms, in particular, speakers’ identity and their campaign expenditures.  The requirements applied, however, to both speakers and third-party media through whom speakers sought to communicate, in particular, radio and television broadcasters.  McConnell also strongly suggests, as discussed, that the limited impact on the First Amendment interests of broadcasters, not the FCC’s longstanding history of broadcast regulation, is what permitted that impact as a constitutional matter.  Quoting the three-judge court’s opinion, the McConnell Court stated that the “disclosure requirements are constitutional because they ‘d[o] not prevent anyone from speaking.’”  Id. at 201, quoting 251 F. Supp. 2d at 241.  This is as true of the impact of disclosure requirements on third parties as it is on speakers themselves.  In any case, McConnell does not suggest that there is room  for applying strict scrutiny in evaluating campaign disclosure and recordkeeping requirements.[7]

The Fourth Circuit primarily justified its difference with the Supreme Court as to the application of exacting scrutiny in challenges to the constitutionality of election regulation because, unlike “customary campaign finance regulations … the Act burdens platforms rather than political actors.”  Slip Op. at 14.  Just because of their first and third-party positions, there should be no more protection for online platforms than for political speakers where the required disclosure of speaker identity and campaign expenditure and recordkeeping.  There are at least two reasons why.

First, if the disclosure of some political speaker’s identity by a third party constitutes compelled political expression, so, certainly, is the compulsion of such a disclosure by that speaker of the speaker’s own identity.  And the potential chilling effect on political expression of such compulsion is at least as great on speakers as it is on third parties, if not greater.  Yet, despite the bright light of Buckley and McConnell, the bottom line result of the Fourth Circuit’s decision was to find, in the name of press and other online platforms’ First Amendment freedoms, greater protection in the Constitution (strict scrutiny) for the identities of political speakers in the hands of third-party online platforms than protection (exacting scrutiny) for such speakers’ identities in their own hands.

Second, in order, to justify its invalidation of the Act on First Amendment grounds, the Fourth Circuit identified two First Amendment harms to third-party online platforms:  impairment of their editorial control and judgment and their being compelled to speak politically, by disclosing the identity and expenditures of political advertisers and making Coverage Records available to regulators.  The first concern, as discussed above, is simply the court’s makeweight effort to give the Act’s effects on online platforms some First Amendment bearing.  In the age of digital storage and communication, it does not stand up on considered reflection.  The latter concern is almost laughable, because it trivializes the meaning of political speech.  Any communication in some manner related to politics or public issues would be, according to the Fourth Circuit, considered political, regardless of the content of the communication, and making required records available for inspection by regulators is not speech within the meaning that the First Amendment intends.[8]

The risk to a speaker from disclosing his own identity and campaign expenditures is plainly greater than the risk to online platforms of disclosing the same information about speakers.  See McConnell, 540 U.S. at 198 (“[T]he First Amendment prohibits States from compelling disclosures that would subject identified persons to ‘threats, harassment, and reprisals … .’”); see also Gibson v. Florida Legislative Comm., 372 U. S. 539 (1963); NAACP v. Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U. S. 479 (1960); Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958).  The greater risk to free speech, therefore, is in imposing disclosure requirements not on third-party online platforms but on political speakers, whose voices are more likely to be chilled by the disclosure of their identities or expenditures.  It is notable, therefore, that the only persons who could credibly claim a material chill on their political speech or complain about their cost being increased through expenses passed through to them by online platforms, political advertisers, were neither parties nor even amici in Washington Post.  Nor have such speakers ever sought in separate litigation to challenge the constitutionality of the Maryland Act.  Not long ago concerning these matters, in its decision in Center for Individual Freedom, Inc. v. Tennant, 706 F.3d 270 (2013) (“CIFI”), the Fourth Circuit, indeed, by a panel including two of the judges in the Washington Post panel,[9] ruled, without pause that “courts should apply ‘exacting scrutiny’ to evaluate campaign finance disclaimer and disclosure provisions.”  Id. at 282, citing Citizens United v. FEC, 558 U.S. 310, 366 (2010).[10]

Although the Fourth Circuit stated in Washington Post that it “decline[d] to decide whether strict or exacting scrutiny should apply,” Slip Op. at 23, the Fourth Circuit did, nevertheless, scrutinize the Act and did so in a manner smacking more of strict than exacting scrutiny.  To be sure, in doing so, the court did not particularly quarrel with the sufficiency of the governmental interests and objectives that supported the Maryland Act, including, but not limited to, inhibiting foreign election interference and providing important election related information to voters.  Slip Op. at 23 (“[T]here is no doubt that Maryland has asserted important government interests to sustain the Act.”).   Nor really could it, given that both Buckley and McConnell are clear that just the voter informational objective of FECA and BRCA would have been sufficient to support major portions of those acts, including, in particular, disclosure requirements like the Maryland Act’s.  Accord CIFI, 706 F.3d at 282-83.  Instead, however, the court did tread unabashedly into an area where legislative judgment is entitled to judicial deference, the fit between the Maryland Act’s requirements and its foreign deterrence and informational objectives.  Slip Op. at 4 (“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.”).

“Even in the realm of First Amendment questions,” however, “deference must be accorded to [legislative] findings as to the harm to be avoided and to the remedial measures adopted for that end, lest [courts] infringe on traditional legislative authority to make predictive judgments … .”  Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 196 (1997).   Courts owe legislative “findings deference in part because the institution ‘is far better equipped than the judiciary to “amass and evaluate the vast amounts of data” bearing upon’ legislative questions.” Id. at 195. “This principle has special significance in cases … involving [legislative] judgments concerning regulatory schemes of inherent complexity and assessments about the likely interaction of industries undergoing rapid economic and technological change.”  Id. at 196.  Surely, nothing less should be said about the rapid and transformational uses of the internet and online platforms in connection with political campaigns.

Given that the disclosure requirements involved in McConnell satisfied exacting scrutiny, including disclosure requirements imposed on third parties, it would have been expected that the disclosure requirements in Washington Post did bear a substantial relationship to the Maryland Act’s objectives.  Yet the Fourth Circuit, purporting to apply exacting scrutiny, found that there was no such substantial relationship.  Slip Op. at 24-28.  It argued that the Act did not do enough to combat foreign election interference, in part, because the Act did not also address the use of social media, but the court did not dispute that one effect of the Act would be to inhibit foreign influence.  And since when does the First Amendment require government to eliminate all forms of a harm, if government seeks to address any form of that harm?  That is not the law.  See McConnell, 540 U.S. at 117 (“Congress’ ‘careful legislative adjustment of the federal electoral laws, in a “cautious advance, step by step,” … warrants considerable deference.’”); Buckley, 424 U.S. at 105 (“[A] statute is not invalid under the Constitution because it might have gone farther than it did, … a legislature need not strike at all evils at the same time, and … reform may take one step at a time.”).

The court also found that the Act was overbroad because Maryland offered little evidence of current foreign meddling on press platforms, as opposed to other platforms.  Even where First Amendment issues are at stake, however, the predictive judgment of legislatures as to threatened harms is to be indulged.  See McConnell, 540 U.S. at 165 (“We ‘must accord substantial deference to the predictive judgments of Congress,’ particularly when, as here, those predictions are so firmly rooted in relevant history and common sense.”) (citation omitted).  Bear in mind, too, that the Act only addressed paid campaign advertising on all online platforms, not any other aspects of online platform functions.  Finally, in its determination that the Act failed exacting scrutiny, the court focused on the Act’s foreign influence objective and essentially ignored the Act’s voter information objective, which, under Buckley and McConnell, was sufficient in itself to justify the Act’s disclosure requirements.

There is no doubt that the Maryland Act’s political advertiser disclosure and recordkeeping requirements served voter information objectives.  Indeed, the Act would have done so more efficiently and effectively than many pre-existing requirements under federal and state law, for the Act required each particular instance of political advertising to be linked to an informative record about it.  In particular, under the terms of the Act, the disclosure and recordkeeping requirements applied “for each qualifying paid digital communication purchased.”  Md. Code Ann., Elec. Law §§ 13-405(b)(6), (c)(3).  The one-year record storage and public access requirement would have allowed time for post-election analysis of the use of online platforms and for any needed investigation into questions or concerns about speaker identity and control.  To be sure, although political advertisers could lie to online platforms about their identity or control, that problem has always existed in connection with election disclosure requirements, even those imposed on political speakers themselves, but it has never been enough to render those requirements valueless.  Given the events of the 2016 election and the documented continuation of identification abuse and concealment by speakers since then, it was certainly within the predictive privilege of the Maryland legislature, as the Supreme Court has firmly recognized, to anticipate such conduct on online platforms.  With much less discussion and argument than that essayed here, the McConnell court sustained, under exacting scrutiny, the constitutionality of legislation having disclosure and recordkeeping requirements whose objectives and means to end were the same as the Act’s.  The Maryland Act warranted nothing less.

Conclusion

Time and again a case arises where the competing interests asserted are, on one side, political expression, most definitively effected in political campaigns and at the ballot box, and, on the other, protection for the will of citizens to be governed by consent, something for which protecting trust in election conduct and consequences is the sine qua non.  It is part of the genius of the American experiment that the balance of these competing interests, a matter fundamentally constitutional, is ultimately left in the hands of a presumably nonpopulist, clear-eyed and objective judiciary.  With fealty to this calling, federal courts, including the Fourth Circuit itself, have not been reticent to “confront the delicate balance between protecting political speech and informing the electorate about the organizations that bankroll modern elections.”  Tennant, 706 F.3d at 275.  “[T]he Supreme Court has emphasized the importance of providing the electorate with information about the source of campaign spending — even when these disclosure requirements burden election-related speech.”  Id., citing McConnell, 540 U.S. at 196.

Buckley, McConnell, Elrod v. Burns, 427 U.S. 347 (1976), and Washington Post are all examples of such cases calling for that delicate and well-considered judicial balance.  In Buckley and McConnell, the judiciary tipped the balance against political expression, upholding intrusions on speaker anonymity and the use of money in elections and favoring protecting trust in elections.  In Elrod, the judiciary tipped the balance differently.  Political belief and expression were protected in exchange for upholding restrictions on election consequences (in the form of restraints on scorched earth patronage practices by electoral victors).  In Washington Post, ostensibly, according to the Fourth Circuit, the contenders were again protection for political expression and trust in elections, and, according to the court, political expression, not election regulation, won.  Or did it?

It is submitted that in Washington Post the District Court and Fourth Circuit both got it wrong.  The winners in Washington Post, where political speakers qua political speakers were nowhere to be to be seen, were neither unfettered political expression nor the protection of trust in elections through regulating their conduct and consequences.  Instead, the winners were really the purely economic interests of online platforms, particularly press online platforms, costuming themselves in Washington Post in the character of citizens invested with the privilege of political expression but not themselves really acting as political speakers.  Except in a trivial and attenuated sense, no political speech was involved.  It was much more about economic costs and advertising profit margins.

Nor was there in Washington Post, as the Fourth Circuit put it, the “hazard [of] giving government the ability to accomplish indirectly via market manipulation what it cannot do through direct regulation—control the available channels for political discussion.”  Slip Op. at 18.  There was no evidence whatsoever that the Maryland legislature sought to engage in any control of the content of speech through market manipulation, and, in the absence of such evidence, it was gratuitous, if not something more distasteful, for one institution of government to say otherwise of another.  There was, however, in Washington Post, the hazard of giving market freedom veiled as the champion of political expression the ability to limit protections for the integrity of channels of political discussion, protections that experience in the closing decades of the 20th Century and the opening decades of the 21st should have taught are vital to preserving trust in elections and, ultimately, democratic government.  There were no truly First Amendment winners in Washington Post, and the losers were a plan purely intended and operating to protect trust in elections, the Maryland Act, and Maryland voters.

 

 

[1] The deadline for filing a petition for rehearing or rehearing en banc passed without such a filing.

[2] See Brennan Center for Justice, Joint Testimony of Daniel I. Weiner and Ian Vandewalker to the Maryland House of Delegates, Ways and Means Committee (Feb. 20, 2018), and sources cited therein.

[3] As the Fourth Circuit itself noted, “disclosure obligations are ordinarily less detrimental to our commitments to free speech because they do not necessarily censor speech like a direct limit on advocacy does.” Slip Op. at 15, citing The Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 548-49 (4th Cir. 2012) (emphasis in original).

[4] The Fourth Circuit also noted that the Act required the disclosure of allegedly confidential proprietary information in the nature of subscribership numbers and advertising charges.  Even if this were true (Much about subscribership is known and, indeed, volunteered in order to support advertising charges, and quotations of charges to advertisers are hardly confidential.), this is not political speech, and government’s privilege to require its disclosure is tested not under the First Amendment but under forgiving Due Process and Equal Protection standards not involved in Washington Post.

[5] See discussion, infra, n.8.

[6] The Court did acknowledge that disclosure of speakers’ identities could, in a given case, inhibit political expression, but not as a general matter.  Accordingly, the Court, as it did in Buckley, shifted to persons claiming this inhibition the burden of producing evidence showing “‘a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.’”  540 U.S. at 198, quoting Buckley, 424 U.S. at 74.  The Court noted that no such showing had been made by anyone before the three-judge court.  540 U.S. at 199.

[7] Although the Court in Buckley concluded that FECA’s “expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions,” 424 U.S. at 23, the Court ruled that, even as to campaign expenditure limitations, their “constitutionality … turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.”  Id. at 44-45 (emphasis added).  In McConnell, the Court treated “soft money” contribution and spending restrictions on national party committees as functionally equivalent to direct contributions to a federal candidate’s campaign (“hard money”), 540 U.S. at 134-42, and, therefore, expressly rejected the application of “strict scrutiny” to soft-money contribution and spending restrictions, see id. at 138-41.  It did not rule or suggest, however, that, unlike in Buckley, it then viewed the constitutionality of independent expenditure limitations, properly so called, as turning on strict scrutiny.  It opined only that, “[i]n Buckley and subsequent cases, we have subjected restrictions on campaign expenditures to closer scrutiny than limits on campaign contributions.”  Id. at 134 (emphasis added).

[8] The Fourth Circuit argued in Washington Post that the Maryland Act would have also chilled speech because of the costs of complying with the Act, specifically, that some online platforms would have chosen not to carry political advertising, in order to avoid the costs.  The argument, however, is unconvincing.  It is doubtful, particularly in the digital age, that online platforms would not try to pass along their additional costs to advertisers.  More likely, online platforms, rather than eschewing opportunities to generate advertising revenues, would instead try and be able pass those costs along to political speakers, with some inelasticity in their economic power to do so, given the essential role of political speech in election campaigns.  See Slip Op. at 15 (“Political groups, by design, have an organic desire to succeed at the ballot box.  And this ambition generally offsets, at least in part, whatever burdens are posed by disclosure obligations.”).

Even if some platforms could not pass along costs and opted not to carry political advertising, the alleged threat that significant speech would be curtailed is belied by the number of outlets that now exist for paid and unpaid political speech and advertising, to wit, broadcast and cable television, radio, the written press, online platforms and social media, the total potential volume of which, in digital terms, is virtually unlimited.  Again, none of the interests before the Fourth Circuit claimed that their speech would be significantly curtailed by added costs or the unavailability of some speech outlets.

Nor does the court’s opinion point to any empirical evidence in the record quantitatively supporting the claim that the supply of speech outlets, in number or capacity, would be significantly impaired, let alone impaired at all.  Other than an anecdotal observation that Google had decided not to carry political advertising in Maryland (there was, however, no express reason given for the decision or statement that the decision was permanent), the court provided no record support for its theory of First Amendment harm other than plaintiffs’ and amici’s naked claims.  To be sure, the court pointed to specific avowals in the record by several platforms that they would need to follow Google, but the only avowal the court quotes makes the equivocal observation that “many [platforms] are seriously considering refusing all digital political advertisements.”  Slip Op. at 16 (emphasis added).  Indeed, though taking the Maryland legislature to task for purportedly not educing adequate empirical support for its Act, the court lamely finds only that “there is good reason to suspect many platforms would simply conclude” that accepting political advertising would not be worth it.  Slip Op. at 16 (emphasis added).

[9] Judge Floyd authored the opinion for the court in Tennant, which Judge Motz joined.  Both judges joined the opinion authored for the court by Judge Wilkinson in Washington Post.

[10] Tennant involved constitutional challenges to disclosure and reporting requirements that West Virginia law imposed on political speakers who communicated through broadcast, cable, satellite, newspaper, magazine or other periodical outlets.  There, the Fourth Circuit readily acknowledged that West Virginia’s interest in an informed electorate was sufficient to serve as a justification for requiring disclosure and reporting and that a substantial relation had been shown between this interest and the law’s application to broadcast, newspaper and periodical outlets.  706 F.3d at 284-85.  In the court’s own words, there was “ample support for including newspapers, magazines, and other periodicals in” the law’s reach.  Id. at 284.  According to the court, however, even though it had been adequately shown that there was a substantial relation between the law’s information aim and its application to newspapers and periodicals, which also justified the law’s restraint on speaking through broadcast outlets, the law’s application to certain but not all non-broadcast outlets (such as “direct mailings, telephone banks, and billboard advertising”) would be invalidated in order to “err on the side of protecting political speech rather than suppressing it.”  Id. at 285.  This rationale, however, illogically ignores that the court itself had just determined that the justification for the law’s application to broadcast outlets also existed for the law’s application to newspaper and periodical outlets, that is, the law’s application to both classes of outlets was substantially related to its informational objective.  Oblivious to its illogic, the court failed to explain why erring on the side of speech rather than suppressing it did not also invalidate the law’s application to broadcast outlets.

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