Federal Court Blocks Maryland Law Aimed at Foreign Spending in Elections Requiring Online News Organizations, Including Plaintiff Washington Post, to Post and Collect Information on Spenders on State Political Advertising

From today’s opinion granting a preliminary injunction in Washington Post v. McManus:

In May 2018, as Americans were continuing to learn the details of a far-reaching Russian campaign to influence the 2016 U.S. presidential contest, the state of Maryland enacted a new law to combat foreign interference in its elections. The law, known as the Online Electioneering Transparency and Accountability Act (the “Act”), sought primarily to curb foreign nationals’ exploitation of Facebook, Instagram, and other social media sites, but its reach was broader than that, extending to many established newspapers’ websites. It requires social media sites and news sites alike to self-publish information about the political ads they run and to make records about those ads available for state inspection. The Act’s passage into law spurred an immediate response from the Washington Post and other media outlets with an online presence in Maryland. The outlets (collectively, “Plaintiffs”) brought this action in federal court to enjoin enforcement of the portions of the Act applying to online publishers, primarily (but not exclusively) arguing that the disclosure and record-keeping requirements codified at Md. Code Ann., Elec. Law S 13-405 violate their First Amendment rights of free speech and a free press. The issue before me at this stage of the proceedings is whether Plaintiffs are entitled to a preliminary injunction.] I conclude that Plaintiffs’ First Amendment claim is likely to succeed on the merits. This conclusion stems from my determination that the Act’s impositions on online publishers are subject to strict scrutiny and that they most likely would not withstand this form of judicial review. I further conclude that, even if I were to analyze the statute under the more forgiving standard of “exacting scrutiny,” the Plaintiffs have shown they would likely prevail. As I am satisfied, as well, that Plaintiffs have met the other requirements for preliminary injunctive relief, their request to preliminarily enjoin enforcement of section 13-405, as applied to them, will be granted.


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