In May 2018, as Americans were continuing to learn the Details of a far-reaching Russian Campaign to Influence the 2016 U.S. Presidential Election, 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 called the “Plaintiffs”, brought 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 Case: Case 1:18-cv-02527-PWG, was decided by United States District Judge Paul W. Grimm.
CONCLUSION
Plaintiffs have met their burden on all Four of the factors. I conclude, accordingly, that preliminary injunctive relief is warranted.
The 2016 election exposed alarming new vulnerabilities in this country's democratic processes. While there is no denying that states have a strong interest in countering newly emerging threats to their elections, the approaches they choose to take must not encroach on First Amendment freedoms that are the hallmark of our nation. Maryland's statute appears to overstep these bounds. While I have no cause to block its enforcement wholesale, Plaintiffs have persuaded me that Md. Code Ann., Elec. Law S 13-405, which includes both the publication requirement and state inspection requirement, is most likely unconstitutional as it applies to these Plaintiffs. With respect to this section and to section 13-405.1, which authorizes the state administrator of elections to investigate potential violations of section 13-405, the Motion for Preliminary Injunction is granted. Accordingly, the State is enjoined from enforcing these provisions against Plaintiffs during the pendency of this suit.
Plaintiffs have challenged the Act on broader grounds than I have discussed in this ruling; while their arguments primarily have focused on how the Act applies to them, they also contend it is facially unconstitutional. It is not necessary for me to address this contention at present, because the grounds discussed warrant the injunctive relief they seek at this stage in the litigation. Before determining what, if any, further proceedings are necessary to conclude this case, I will schedule a telephone conference call with counsel. The State may well wish to file an interlocutory appeal, and if so it may be prudent to stay further proceedings until the appeal has been decided.
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