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4th Circuit strikes down Md. law, says it violates freedoms of speech, press

Act violates free speech, press, court says

Steve Lash//December 9, 2019

4th Circuit strikes down Md. law, says it violates freedoms of speech, press

Act violates free speech, press, court says

By Steve Lash

//December 9, 2019

The Maryland General Assembly has violated the First Amendment in its zeal to prevent foreign interference in state and local elections, a federal appeals court ruled Friday.

The 4th U.S. Circuit Court of Appeals struck down as violating the freedoms of speech and press a 2018 law that would have required news outlets accepting political advertisements on their websites to include the purchaser’s identity and the amount paid for the ad.

In its published 3-0 decision, the 4th Circuit also invalidated a provision of the Electioneering Transparency and Accountability Act that would have required the outlets to keep the information for at least a year so it could be reviewed by the Maryland State Board of Elections upon request.

The 4th Circuit distinguished the statute, which had been stayed by a federal judge, from valid, existing state laws that put the onus on candidates and campaigns to identify themselves as the source of the advertisements, rather than place the burden on news outlets.

“The Supreme Court has made clear that when the government tries to interfere with the content of a newspaper or the message of a news outlet, the constitutional difficulties mount,” Judge J. Harvie Wilkinson III wrote for the court. “Maryland’s law attempts to do just that. As noted, the act forces news outlets to publish certain information on their websites and, if they fail to do so, empowers the state to seek a court order to have content pulled from their platforms.”

The 4th Circuit found especially constitutionally troubling the state-inspection authority called for under the statute, saying the provision “brings the state into an unhealthy entanglement with news outlets.”

“The core problem with this provision of the act is that it lacks any readily discernable limits on the ability of government to supervise the operations of the newsroom,” Wilkinson wrote.

“Today the state asks for information about the targeted audience; tomorrow perhaps the names and addresses of all officers or corporate affiliates of the ad purchaser; the day after the identities of donors to those purchasers,” Wilkinson added. “Without clear limits, the specter of a broad inspection authority, coupled with an expanded disclosure obligation, can chill speech and is a form of state power the Supreme Court would not countenance.”

The 4th Circuit’s decision upholding a district court judge’s ruling was a victory for a bevy of newspapers that challenged the law’s constitutionality.

“We are obviously pleased that both the district court and the appeals court have found this statute unconstitutional and have reaffirmed that, while transparency in election advertising is important, this is not the way to go about it,” Seth D. Berlin, the newspapers’ attorney, stated in an email message Monday. Berlin is with Ballard Spahr LLP in Washington.

The Maryland Attorney General’s Office said in a statement Monday that it was reviewing the decision.

The General Assembly passed the statute amid revelations that Russian nationals had attempted to influence the 2016 presidential election between Donald Trump, the eventual winner, and Hillary Clinton via a disinformation campaign on social media and similar online platforms. The law went into effect without the signature of Gov. Larry Hogan, who said the statute raised “serious constitutional concerns” because it “would compel speech by news outlets.”

Following Hogan’s lead, The Washington Post, The Baltimore Sun and many other newspapers and media organizations across Maryland sued the state seeking to block enforcement of the law on First Amendment grounds. These organizations included the Maryland-Delaware-D.C. Press Association, of which The Daily Record is a member.

U.S. District Judge Paul W. Grimm in Baltimore sided with the news outlets in granting a preliminary injunction preventing enforcement of the law. The state then appealed to the 4th Circuit.

Wilkinson was joined in the opinion by Judges Diana Gribbon Motz and Robert B. King.

The 4th Circuit issued its decision in The Washington Post et al. v. David J. McManus Jr., Chairman, Maryland State Board of Elections et al., No. 19-1132.


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