Paul W. Grimm, United States District Judge.
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,
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 § 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.
The Maryland statute is among a number of state responses
For many Americans, the extent of the Russian online operations began to come into focus in January 2017, when U.S. intelligence agencies released a declassified report summarizing Russia's campaign to shape U.S. public opinion. See Office of Dir. of Nat'l Intelligence, Intelligence Community Assessment: Assessing Russian Activities and Intentions in Recent U.S. Elections (Jan. 6, 2017), https://www.dni.gov/files/documents/ICA_2017_01.pdf [hereinafter ICA Report]; Albright Decl. 4-5, ECF No. 31-1. The report, representing the joint findings of the Central Intelligence Agency ("CIA"), Federal Bureau of Investigation ("FBI"), and National Security Agency ("NSA"), concluded that Russian President Vladimir Putin had personally ordered the operations as part of a broader strategy to "undermine public faith in the US democratic process" and to damage the Democratic nominee's chances in the November 2016 presidential election. See ICA Report, supra, at 1. The campaign encompassed a range of tactics, which — beyond the online trolling
In March 2017, then-FBI Director James Comey revealed in testimony before the U.S. House of Representatives Permanent Select Committee on Intelligence that the FBI was investigating Russian efforts to interfere in the 2016 election. In re Grand Jury Investigation, 315 F.Supp.3d 602, 621 (D.D.C. 2018). Two months later, the Acting Attorney General appointed Robert S. Mueller III to serve as Special Counsel for the U.S. Department of Justice to investigate "(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.04(a)." U.S. Dep't of Justice, Office of the Deputy Attorney Gen., Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/press-release/file/967231/download. The special counsel's investigation, which remains ongoing, has yielded a multitude of criminal prosecutions, including two sets of grand jury indictments against alleged Russian operatives. See Indictment, United States v. Netyksho, No. 18-cr-215-ABJ (D.D.C. July 13,
In the first of those cases, a grand jury on February 13, 2018, indicted three Russian companies and thirteen Russian nationals, linking them to an extensive campaign to conduct what participants allegedly described as "information warfare against the United States of America." Indictment at 6, Internet Research Agency, No. 18-cr-32-DLF. The indictment accuses a St. Petersburg-based organization known as the Internet Research Agency of spending millions of dollars and employing hundreds of people to post divisive and inflammatory material on social media sites in 2015 and 2016. See id. at 5. Operatives allegedly created hundreds of phony accounts and group pages on Facebook, Instagram, Twitter, and other social media platforms. See id. at 14-15. As the U.S. presidential nominating contests were heating up, participants purportedly used these accounts to disparage candidates the Russian government disfavored, while promoting those it preferred. See id. at 17. Other posts encouraged members of minority groups, including African Americans and Muslims, to boycott the election or vote for a third-party candidate. See id. at 18.
The indictment also asserts that, between April 2016 and November 2016, members of the Internet Research Agency, acting under assumed false identities, bought advertisements on "U.S. social media and other online sites expressly advocating for the election of then-candidate Trump and expressly opposing" his Democratic rival, former Secretary of State Hillary Clinton. See id. at 19, 23. Several of the advertisements the organization placed on Facebook promoted pro-Trump rallies it had planned. See id. at 25, 27, 30. The organization did not report its expenditures to the Federal Election Commission ("FEC"). See id. at 19.
A declaration included with Plaintiffs' reply brief in this case expands on the special counsel's assertions, filling in details about the Russian plot. Jonathan Albright, director of the Digital Forensics Initiative at the Tow Center for Digital Journalism at the Columbia University Graduate School of Journalism, explained that his research into foreign interference with the 2016 election has shown that the primary weapons in the Russian disinformation campaign were unpaid social media posts, rather than paid advertisements. See Albright Decl. 6. For the most part, the operatives' posts made no explicit references to the election or to any particular candidates. See id. at 6-7. More typically, the posts commented on controversial issues like race, gun rights, or immigration in hopes of stoking "outrage, fear, and frustration" among American social media users. Id. at 7.
Albright's research also identified a considerably smaller volume of foreign-sourced paid content. See id. at 7-8. Most of this content — Albright uses the term "paid posts" — appeared on Facebook and Instagram, which offered a variety of tools and services featuring "sophisticated algorithms" that enabled clients to precisely target people who might be particularly receptive to their message. Id. at 8, 10; see Brennan Center Testimony 2, ECF No. 24, Ex. A. For example, he says, Russian operatives used a Facebook tool known as Custom Audiences to deliver highly targeted messages to people who had visited misleading websites and Facebook pages the operatives had created. See Albright Decl. 8.
Testimony by senior counsel for the Democracy Program at the Brennan Center for Justice during a Maryland House of Delegates committee hearing on the Act indicated that Russian operatives had Maryland residents, in particular, in their crosshairs during the run-up to the 2016 election. See Brennan Center Testimony 2. Counsel noted the operatives "targeted socially polarizing Facebook ads to the Baltimore area, which was experiencing mass protest movements and high tensions" at the time. Id. A transcript of counsel's testimony cited a news article quoting a congressman as stating that Russians targeted 262 ads to Marylanders during the election. Id. (citing Changez Ali & J.F. Meils, GOP Senator: Maryland One of Three States Most Targeted by Russian Ads in 2016, Delmarva Now (Nov. 2, 2017), https://www.delmarvanow.com/story/news/local/maryland/2017/11/02/maryland-russian-facebook-ads-campaign/826688001/). Many of these ads alluded to the Black Lives Matter movement and sought to stoke racial tensions. See Albright Decl. 7-8.
It was in February 2018, amid the uproar over Russian meddling in American political affairs, that Maryland legislators — noting an absence of any federal statutory or regulatory activity aimed at thwarting foreign interference in its elections — resolved to act and introduced the bill at issue here. While presenting the legislation in the House of Delegates, the bill's sponsors testified that its aim was to stop foreign powers — Russia, in particular — from interfering in Maryland elections in the future.
The bill, as enacted, expands the scope of the state's existing campaign finance laws to cover online political ads. See 2018 Md. Laws 834. It does this, in part, by redefining the terms "public communication" and "electioneering communication," as they appear in Maryland's election laws, to include a limited subset of campaign materials that are posted for a fee on websites, social networks, search engines, or other online platforms. See id. (codified at Md. Code Ann., Elec. Law §§ 1-101(dd-1), (11-1), 13-306(a)(6), -307(a)(3)). This change ensures that disclosure requirements the state long has imposed on purchasers of TV, radio, and print ads also apply to purchasers of online ads. See Elec. Law §§ 13-306(b)-(d), -307(b)-(d).
The Act goes farther. One section empowers the state administrator of elections to investigate potential violations of the laws governing online political ads. See id. § 13-405.1. Another bars political ad buyers from using foreign currency to make their purchases.
The Act's other revisions to the state's election law, which Plaintiffs challenge here, impose a series of duties on "online platforms" that feature paid political ads. The Act defines "online platform" as
Id. § 1-101(dd-1). For sites that come within this definition, the Act imposes what essentially boils down to two requirements. The first, which I will refer to as the "publication requirement," obligates the online platform to post information about political ads on the platform's own website. See id. § 13-405(b). The second, which I will call the "state inspection requirement," imposes on the platform a duty to keep records in connection with each qualifying ad and make them available to the State Board of Elections upon request. See id. § 13-405(c).
The publication requirement is found in section 13-405(b) of the Maryland Election Law. Under this provision, an online platform that agrees to place a "qualifying
The state inspection requirement, found in section 13-405(c), imposes separate record-keeping obligations. Here, the platform must preserve a digital copy of the ad and maintain records containing the following information:
Id. § 13-405(c)(3). These records must be maintained for one year after the general election and must be turned over to the State Board "on request." Id. § 13-405(c)(1)-(2).
The publication requirement and state inspection requirement are functionally distinct, but they operate as part of a single scheme. To facilitate compliance with both obligations, the Act requires online platforms to provide ad buyers with a way of notifying them when an ad they are seeking to place comes within the statutory definition of a "qualifying paid digital communication." See id. § 13-405(a)(3). The Act puts the onus on ad buyers to provide the notice to the platform at the time they place the ad, see id. § 13-405(a)(1), and to supply the platform with the information it will need to comply with both the publication requirement and the state inspection requirement,
The Act took effect on July 1, 2018. See 2018 Md. Laws 834, § 2. Governor Larry Hogan allowed the bill to become law without his signature. See Letter from Governor Larry Hogan to S. President Thomas V. Mike Miller Jr. & H. Speaker Michael E. Busch (May 25, 2018), available at https://governor.maryland.gov/wp-content/uploads/2018/05/EWS-HB981-SB875-Online-Electioneering.pdf.
Plaintiffs
Plaintiffs' motion raises several constitutional arguments. Chiefly, it argues that Md. Code Ann., Elec. Law § 13-405 — the portion of the law that compels online publishers to publish information on their websites and make records available to the state — violates the First and Fourteenth Amendment guarantees of free speech and press, both facially and as applied to Plaintiffs.
The parties have fully briefed the motion and presented arguments at a hearing on November 16, 2018.
A preliminary injunction serves to "protect the status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court's ability to render a meaningful judgment on the merits." In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003); see Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). As a preliminary injunction is an "extraordinary remedy," it "may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
Winter v. Natural Resources Defense Council, Inc. establishes the familiar requirements for a preliminary injunction. Under Winter, the plaintiff must show "that [1] he is likely to succeed on the merits, [2] he is likely to suffer irreparable
In reviewing a motion for preliminary injunction, a court must separately consider each of the four Winter factors. See Di Biase, 872 F.3d at 230. I begin, accordingly, with the matter of Plaintiffs' likelihood of succeeding on the merits.
"A plaintiff need not establish a `certainty of success,' but must make a clear showing that he is likely to succeed at trial." Id. (quoting Pashby, 709 F.3d at 321). Here, because I conclude that Plaintiffs are likely to succeed on their claim that portions of the Act violate their First and Fourteenth Amendment rights of free speech and freedom of the press, I need only address this issue for purposes of evaluating their likelihood of prevailing on the merits.
The dispute over the Act's constitutionality underscores the tension between two competing interests in Free Speech Clause jurisprudence. The first and most readily apparent of these is, of course, the individual's interest in free expression — i.e., the speaker's interest in speaking. The other is the broader public's interest in minimizing the societal harms that would be all but certain to flow from an absolute, unchecked right to say anything at any time, in any place, and in any manner the speaker so desires. See Thomas I. Emerson, Toward a Theory of the First Amendment, 72 Yale L.J. 877, 907-08 (1963).
The text of the Free Speech Clause unequivocally protects the first of these interests, declaring in no uncertain terms that Congress "shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. It is long since settled, though, that the Clause does not strip the government of all power to regulate speech. See Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 482, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007); Konigsberg v. State Bar of Calif., 366 U.S. 36, 49-50 & n.10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961). The modes of analysis courts have employed in their efforts to identify the limits of governmental authority in this arena have evolved over time, maturing into the doctrinal, category-based approach courts employ today. See Richard H. Fallon Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1274-85 (2007); Note, Free Speech Doctrine After Reed v. Town of Gilbert, 129 Harv. L. Rev. 1981, 1982 (2016). This approach requires courts to distinguish among speech-suppressing regulations much the same way a biologist distinguishes among organisms, identifying their most distinctive features and slotting each new species into its proper genus.
To guide lower courts in this exercise, the Supreme Court has propounded several baseline principles, three of which come into play in this case. First, the Court has observed that the Free Speech Clause aims, above all else, to guarantee the "free debate and free exchange of ideas" necessary to ensure "that government remains responsive to the will of the people." Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 S.Ct. 1131 (1949). It is for this reason, chiefly, that political speech is entitled to the highest degree of constitutional protection. See Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846,
Second, it is a fundamental tenet of First Amendment jurisprudence that the government "has no power to restrict expression because of its message, its ideas, or its content." United States v. Alvarez, 567 U.S. 709, 716, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (quoting Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002)). The Court reaffirmed this principle only a few years ago in Reed v. Town of Gilbert, explaining that content-based regulations — i.e., those that distinguish among different types of speech on the basis of their communicative content — are highly suspect and "presumptively unconstitutional." ___ U.S. ___, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). The test for these regulations mirrors the test for laws that burden political speech, in that both are subject to strict scrutiny. See id.; Cent. Radio Co. v. City of Norfolk, Va., 811 F.3d 625, 633 (4th Cir. 2016); Cahaly v. Larosa, 796 F.3d 399, 402 (4th Cir. 2015).
Finally, the Court has left no doubt that the First Amendment cabins the government's power to compel speech no less than it does the power to restrict speech. See Janus v. Am. Fed'n of State, Cty. & Mun. Emps. Council 31, ___ U.S. ___, 138 S.Ct. 2448, 2463, 201 L.Ed.2d 924 (2018) ("We have held time and again that freedom of speech `includes both the right to speak freely and the right to refrain from speaking at all.'" (quoting Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977))); Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ("[F]reedom of speech prohibits the government from telling people what they must say."); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ("[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide `what not to say.'" (quoting Pac. Gas & Elec. Co. v. Pub. Utilities Comm'n of Cal., 475 U.S. 1, 11, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion))); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). This understanding of the Free Speech Clause reflects a recognition that requiring a speaker to disseminate a message that is not his own may, in fact, deter him from speaking at all, "thereby reducing the free flow of information and ideas that the
This last concept intersects with the second, as any law that compels speech "necessarily alters the content of the speech." Riley v. Nat'l Fed. of Blind of N.C., Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). It follows, then, that laws compelling speech are treated as content-based and are subject to strict scrutiny. See id.; Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City of Balt., 721 F.3d 264, 283 (4th Cir. 2013); Stuart v. Loomis, 992 F.Supp.2d 585, 592-93 (M.D.N.C. 2014).
These three principles lay the foundation for my analysis here. The first is plainly implicated because the Maryland statute regulates electioneering communications — indisputably a form of political speech. See Wis. Right to Life, 551 U.S. at 481, 127 S.Ct. 2652; Ctr. For Individual Freedom, Inc. v. Tennant, 706 F.3d 270, 285 (4th Cir. 2013). The applicability of the second and third principles is equally evident. The statute singles out campaign-related content for regulation — as patent a case of content discrimination as there could be — and compels online publishers to retain records, make information available upon request, and publish content on their websites. See Md. Code Ann., Elec. Law § 13-405(b)-(c). These considerations all point in the same direction, signaling Plaintiffs are correct in asserting that, on summary judgment or at trial, the State would bear the heavy burden of demonstrating the Maryland statute overcomes strict scrutiny.
But this is far from the end of the matter, because as the State rightly notes, the field of First Amendment case law is fertile with exceptions to the various fundamental rules. See Stuart v. Camnitz, 774 F.3d 238, 244 (4th Cir. 2014). There are, of course, the traditional limitations on First Amendment protection for speech that is said to be "of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality." R.A.V. v. City of Saint Paul, Minn., 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 S.Ct. 1031 (1942)). These areas of speech include obscenity, defamation, fraud, incitement, and "speech integral to criminal conduct," United States v. Stevens, 559 U.S. 460, 468-69, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010), as well as fighting words, "true threats," and "pornography produced with real children," Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); see Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). While it is sometimes said that these areas of speech fall outside the scope of the First Amendment, the Court has explained that pronouncements to that effect are not "literally true." R.A.V., 505 U.S. at 383, 112 S.Ct. 2538. Rather, it would be more accurate to say that states may regulate these areas of speech "because of their constitutionally proscribable content" but cannot make them "vehicles for content discrimination unrelated to their distinctively proscribable content." Id.
The First Amendment is more protective of another category of speech — namely, commercial speech — but here, too, the Court has seen fit to give the government extra leeway. See Janus, 138 S.Ct. at 2464-65; City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 426 & n.21, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (explaining that the "interest in preventing commercial harms justifies more intensive
The general principle that content-based regulations of speech are presumptively unconstitutional gives way in other contexts as well. See generally Matthew D. Bunker et al., Strict in Theory, but Feeble in Fact? First Amendment Strict Scrutiny and the Protection of Speech, 16 Comm. L. & Pol'y 349, 362-63 (2011). For example, the Court has recognized that the government's responsibilities as an administrator and service provider may require a freer hand to regulate speech by people in its care or custody, such as public school students or prisoners. See Morse v. Frederick, 551 U.S. 393, 404-05, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007); Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Similarly, the Court has given the government some latitude in regulating the words and actions of military service members, see Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), and of public employees making statements pursuant to their official responsibilities, see Lane v. Franks, 573 U.S. 228, 235-37, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). These precedents, the Court has said, stand "for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech." Citizens United, 558 U.S. at 341, 130 S.Ct. 876.
Along similar lines, the Court has carved out special rules for broadcast media, reasoning that the finite supply of broadcast frequencies justifies "some adjustment in traditional First Amendment analysis to permit the Government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees." Turner Broad. Sys., Inc. v. Fed. Commc'ns Comm'n, 512 U.S. 622, 637-38, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); see Red Lion Broad. v. Fed. Commc'ns Comm'n, 395 U.S. 367, 386-90, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). This rationale, the Court has made clear, is particular to broadcast communications and does not apply to cable transmissions or material posted on the Internet. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 868-70, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); Turner, 512 U.S. at 639, 114 S.Ct. 2445.
Each of these lines of cases marks a limited exception to the baseline principles controlling the constitutional review of content-based laws and regulations (including those that compel speech). Here, the State invokes a separate line of cases presenting yet another exception to the rule. Its argument, in brief, is that the Maryland statute is, in effect, a campaign finance disclosure law and ought to be reviewed under a less-demanding standard the Court has specially reserved for those cases, a standard known as "exacting scrutiny." What follows is a brief synopsis of this line of cases.
The seminal campaign finance case is Buckley v. Valeo, which observed, as a preliminary matter, that the Constitution empowers Congress to regulate federal
Buckley established the standards that courts apply in cases challenging campaign finance regulations on First Amendment grounds. In doing so, the Court drew distinctions between different types of regulations "based on the degree to which each encroaches upon protected First Amendment interests." McCutcheon v. Fed. Election Comm'n, 572 U.S. 185, 196-97, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014) (discussing Buckley); see Indep. Inst. v. Williams, 812 F.3d 787, 791-92 (10th Cir. 2016). Buckley first explained that regulations restricting the amount of money a person or group can spend on political communications during a campaign are especially problematic because "virtually every means of communicating ideas in today's mass society requires the expenditure of money." 424 U.S. at 19, 96 S.Ct. 612. Spending limits, the Court stated, are sure to reduce "the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Id. Accordingly, the Court held that the constitutionality of a spending limitation "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, 96 S.Ct. 612. The Court has since clarified that the phrase "exacting scrutiny,"
By contrast, the Buckley Court found that contribution limits — i.e., regulations limiting the amount of money a person or group may contribute to a candidate or political committee — were less worrisome, reasoning that these types of regulations entail "only a marginal restriction upon the contributor's ability to engage in free communication." 424 U.S. at 20, 96 S.Ct. 612. While Buckley did not precisely articulate a standard for reviewing the constitutionality of contribution limits, see Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 386, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) ("Precision about the relative rigor of the standard to review contribution limits was not a pretense of the Buckley per curiam opinion."), subsequent cases subjected these types of restrictions to a kind of intermediate scrutiny. Under this standard, an across-the-board contribution limitation "cannot stand unless [it] is `closely drawn' to serve a `sufficiently important interest,' such as preventing corruption and the appearance of corruption." Davis v. Fed. Election Comm'n, 554 U.S. 724, 737, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008); see also Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 466, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001).
The last — and, for present purposes, most relevant — variety of campaign finance regulation the Buckley Court addressed was arguably the least constitutionally suspect: disclosure requirements. See Buckley, 424 U.S. at 64, 96 S.Ct. 612; Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1003 (9th Cir. 2010). To be sure, Buckley did not view these laws as constitutionally benign; rather, it recognized that laws compelling disclosure can, at times, "seriously infringe on privacy of association and belief guaranteed by the First Amendment." 424 U.S. at 64, 96 S.Ct. 612. By way of example, the Court cited National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), which overturned a state court order that sought to compel a local chapter of the NAACP to reveal its members' names and addresses. There, the Court concluded the state's interest in disclosure did not justify the harm to the organization's members' rights, given the likelihood the production requirement would induce some NAACP members to withdraw from the group and would discourage others from joining in the first place, for fear of the consequences that might accompany the exposure of their beliefs. 357 U.S. at 462-65, 78 S.Ct. 1163.
Turning to the statute before it, the Buckley Court observed that, in the campaign finance context, disclosure requirements have the potential to deter some people from making contributions and could, under some circumstances, "expose contributors to harassment or retaliation." 424 U.S. at 68, 96 S.Ct. 612. At the same time, though, the Court acknowledged that "there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the
The test that emerged from Buckley, which has come to be known as "exacting scrutiny," requires the government to show the record-keeping, reporting, or disclosure provisions of a campaign finance law are "substantially related" to an "important" government interest. See John Doe No. 1 v. Reed, 561 U.S. 186, 196, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010); Citizens United, 558 U.S. at 366-67, 130 S.Ct. 876 (citing Buckley, 424 U.S. at 64, 66, 96 S.Ct. 612; Buckley v. Am. Constitutional Law Found. (ACLF), 525 U.S. 182, 202, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); Tennant, 706 F.3d at 282; Real Truth About Abortion, Inc. v. Fed. Election Comm'n, 681 F.3d 544, 549 (4th Cir. 2012); see also Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 735, 131 S.Ct. 2806, 180 L.Ed.2d 664 (2011).
The Supreme Court has applied the Buckley "exacting scrutiny" test on five occasions.
The Buckley test reappeared decades later in Davis v. Federal Election Commission, 554 U.S. 724, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008), a case that tested the facial constitutionality of the federal "Millionaire's Amendment," which sought to bridge the fundraising gap in races where one candidate was spending large sums of his or her own money. After concluding the Millionaire's Amendment failed strict scrutiny, the Court considered the constitutionality of an accompanying provision that required self-financing candidates to make certain disclosures in connection with the Amendment. See 554 U.S. at 744, 128 S.Ct. 2759. Citing to Buckley, the Court concluded — without much discussion — that the disclosure requirement was unjustifiable because the law it was designed to implement was itself unconstitutional. See id.
The remaining two cases dealt with state ballot initiatives. In Buckley v. American Constitutional Law Foundation, Inc. (ACLF), the Court struck down a Colorado statutory provision requiring ballot-initiative proponents who employ paid circulators to file reports disclosing not only the proponents' identities but the circulators' names and addresses and the total amount paid to each circulator. 525 U.S. at 204, 119 S.Ct. 636. The Court reasoned that requiring the disclosure of the circulators' identities and the amount they were paid was not substantially related to the state's interest in curbing the influence of affluent special interest groups or deterring corruption. See id. at 202-04, 119 S.Ct. 636. By contrast, in John Doe No. 1 v. Reed, the Court held the state of Washington did not violate the First Amendment in requiring people who signed a referendum petition to reveal their names and addresses. 561 U.S. 186, 202, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010). The Court concluded the requirement withstood exacting scrutiny, noting the state's strong interest in ensuring the integrity, transparency, and accountability of its electoral process. See id. at 197-99, 130 S.Ct. 2811.
Here, the parties and amici have identified twelve federal appellate court decisions applying the Buckley exacting scrutiny standard.
To review, the State does not dispute that the statute at issue here implicates political speech and discriminates on the basis of content — two factors that, ordinarily, saddle the government with the burden of overcoming strict scrutiny. See Reed, 135 S.Ct. at 2226; Citizens United, 558 U.S. at 340, 130 S.Ct. 876. The State's argument, in brief, is that those bedrock principles do not apply here because Buckley and its progeny supply a different standard for election-related disclosure requirements.
The Maryland statute is indisputably unlike the various statutes the Supreme Court and federal courts of appeals have reviewed under the Buckley exacting scrutiny standard. In each of those cases, the challenged regulations imposed burdens on individuals or groups seeking to influence an election or ballot question—the direct participants in the electoral process. They did not burden ostensibly neutral third parties such as publishers of political advertisements, as the Maryland statute does.
To this, the State offers two replies. First, it argues that "nothing in Citizens United or its forebears supports" Plaintiffs' inference that exacting scrutiny applies only to disclosure requirements burdening "speakers of election-related speech." Defs.' Opp'n 16-17 (emphasis in original) (quoting Pls.' Mem. 17). Second, it suggests the Buckley rationale applies no less forcefully to regulations burdening the press than to those that burden political actors directly. I address each of these arguments below.
The State's first argument is hardly persuasive. A court cannot be expected to answer a legal question that no party in the case before it has squarely presented. See U.S. Const. art. III, § 2; O'Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). If there is a dearth of case law addressing a state's power to compel the press to disclose information about the political ads they publish, it is not because the state's power is unquestioned, but rather because few states have exercised it, as Maryland now has.
That said, it is simply not true that no court has examined a regulation that compelled media outlets to make disclosures in connection with political advertisements. None other than the Supreme Court did just that in McConnell v. Federal Election Commission, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), overruled in part on other grounds, Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). The statutory provision in that case, it must be said, was meaningfully distinct from Maryland's law, in that its obligations fell exclusively on broadcasters, who have historically been subjected to heavier governmental regulation. 540 U.S. at 233-46, 124 S.Ct. 619. Nevertheless, the Court's analysis is instructive, and, in my view, it undercuts the State's position here.
This particular portion of the McConnell Court's opinion concerned Title V of the Bipartisan Campaign Reform Act of 2002 ("BCRA"), which amended the Communications Act of 1934 to require broadcast licensees to collect and disclose records of
The Supreme Court reversed. McConnell, 540 U.S. at 246, 124 S.Ct. 619. Justice Breyer's opinion, on behalf of a five-member majority, could have been clearer in articulating the standard that it applied. I note, though, that while the opinion does not include a single citation to Buckley or any other cases applying the "exacting scrutiny" standard, it twice invokes Red Lion Broadcasting Co. v. Fed. Commc'ns Comm'n, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), one of the leading cases establishing that regulations of broadcast media (e.g., non-cable television or radio) receive a lower level of First Amendment scrutiny than other laws burdening speech. See McConnell, 540 U.S. at 237, 124 S.Ct. 619 (citing Red Lion, 395 U.S. at 380, 89 S.Ct. 1794). The McConnell majority's opinion echoes Red Lion in explaining that the challenged regulations were in keeping with a long history of federal regulations of broadcast media. See id. at 234-38, 124 S.Ct. 619; Red Lion, 395 U.S. at 369, 89 S.Ct. 1794 (noting the fairness doctrine, at issue in that case, "originated very early in the history of broadcasting and has maintained its present outlines for some time," courtesy of a "long series of FCC rulings"). The majority's deference to the FCC was sufficiently pronounced that Chief Justice Rehnquist, in dissent, accused the Court of approaching the provision "almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected." McConnell, 540 U.S. at 359, 124 S.Ct. 619 (Rehnquist, C.J., dissenting).
The McConnell majority could have declared, as both the Chief Justice's dissent and the lower court panel did, that Buckley's "exacting scrutiny" standard applied to Title V's disclosure requirements. It did not. While the majority's opinion leaves unclear exactly which standard of constitutional scrutiny controlled in that case,
The State's second argument looks to Buckley itself, suggesting its rationale applies to laws like Maryland's no less forcefully than it does to more traditional campaign finance disclosure laws that impose no burdens on the press or other third parties. See Defs.' Opp'n 16. Under either regime, the State argues, the disclosure requirement serves the same governmental interest of "`providing the electorate with information' about sources of election-related spending." Id. at 17, 96 S.Ct. 612 (alteration omitted) (quoting Buckley, 424 U.S. at 66, 96 S.Ct. 612). The strength of that interest, it asserts, "does not depend on whether the person required to make the disclosure is the person who made the expenditure or who received it." Id.
This argument, as I see it, makes the mistake of viewing the government's interest in isolation from the speaker's interest. It may well be true that the public benefits equally from information about candidates' finances no matter where the information is sourced, be it from the political committees themselves or from the press. It does not follow, though, that as a matter of constitutional law it makes no difference which route the government takes.
The Supreme Court's analysis in Buckley began with the premise that campaign finance regulations intrude on political expression, which is entitled to "the broadest" First Amendment protection. 424 U.S. at 14, 96 S.Ct. 612. When, in the course of its per curiam opinion, the Court drew distinctions among the three strains of regulations in that case (namely, spending limits, contribution limits, and disclosure requirements), it did not base these distinctions on the strength of the government's interest. Rather, as the Court later explained in McCutcheon v. Federal Election Commission, the distinctions were "based on the degree to which each [type of regulation] encroaches upon protected First Amendment interests." 572 U.S. at 196-97, 134 S.Ct. 1434. The less onerous test for disclosure requirements reflects the Buckley Court's view that these sorts of regulations, unlike aggregate limits on spending or contributions, "impose no ceiling on campaign-related activities," 424 U.S. at 64, 96 S.Ct. 612, and are often "the least restrictive means" of keeping the public informed and deterring corruption, id. at 68, 96 S.Ct. 612.
The flaw in the State's argument here is that it overlooks the possibility that statutes like Maryland's might encroach on First Amendment rights more profoundly than ordinary campaign finance disclosure requirements. This is an error, because to my mind, it is evident that they do. All compelled disclosure laws implicate the Free Speech Clause, but laws imposing those burdens on the media implicate a separate First Amendment right as well: the freedom of the press. See U.S. Const. amend. I ("Congress shall make no law ... abridging the freedom ... of the press...."). "[L]aws that single out the press, or certain elements thereof, for special treatment `pose a particular danger of abuse by the State' ...." Turner Broad. Sys., 512 U.S. at 640, 114 S.Ct. 2445 (quoting Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221, 228, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987)). Such regulations evoke a concern that government may wield its authority "as a censor to check critical comment by the press, undercutting the basic assumption of our political system that the press will often serve as an important restraint on government." Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 585, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983). The
It should be clear by now that, when analyzing the constitutionality of a compelled disclosure law, Buckley is not the starting point. The "exacting scrutiny" standard it propounded is, on the contrary, a limited exception to the general rule that compelled disclosure laws, like all content-based regulations, must overcome strict scrutiny. See Reed, 135 S.Ct. at 2226. What the State is seeking to do here, at bottom, is to expand Buckley to cover a wider array of regulations than the doctrine has previously encompassed. Recent Supreme Court precedents, though, strongly suggest that courts should view those exceptions narrowly. See Nat'l Inst. of Family & Life Advocates v. Becerra, ___ U.S. ___, 138 S.Ct. 2361, 2372, 201 L.Ed.2d 835 (2018).
Reed v. Town of Gilbert was a watershed First Amendment case, refining the analysis of content-based regulations and cementing the primacy of the rule that such regulations receive strict scrutiny. See Free Speech Coal., Inc. v. Attorney Gen., 825 F.3d 149, 160 n.7 (3d Cir. 2016) ("Reed represents a drastic change in First Amendment jurisprudence."); Norton v. City of Springfield, Ill., 806 F.3d 411, 412-13 (7th Cir. 2015) (explaining that Reed "effectively abolishes any distinction between content regulation and subject-matter regulation). Reed declares, without qualification, that "[c]ontent-based laws — those that target speech based on its communicative content — are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." 135 S.Ct. at 2226.
Justice Thomas's majority opinion in Reed did not allude to the various species of regulations that have historically received less rigorous scrutiny, even where they plainly discriminate on the basis of content. See id. at 2235 (Breyer, J., concurring in the judgment) (asserting the majority's approach does not square with the "many subcategories and exceptions" the Court had previously recognized, including its holdings on commercial speech and government speech). The prevailing consensus appears to be that those exceptions to the Reed content-neutrality framework survive. See, e.g., Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1198 n.3 (9th Cir. 2016) (maintaining that restrictions on commercial speech "need only withstand intermediate scrutiny," even after Reed); Mass. Ass'n of Private Career Schs. v. Healey, 159 F.Supp.3d 173, 192 (D. Mass. 2016) ("Although only a small number of courts have addressed First Amendment challenges to commercial-speech regulations since Reed, almost all of them have concluded that Reed does not disturb the Court's longstanding framework for commercial speech under Central Hudson."); Lee Mason, Comment, Content Neutrality and Commercial Speech Doctrine After Reed v. Town of Gilbert, 84 U. Chi. L. Rev. 955, 958 (2017). But see Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017) (stating there remains some uncertainty as to whether Reed upends the traditional framework for commercial speech). Plainly, though, the thrust of Reed is that content-based laws, as a general matter, are suspect. In my view, its strong, unqualified language cuts against the State's plea here to review the Maryland statute — a facially content-based law — under a less rigorous level of scrutiny.
An even more recent majority opinion by Justice Thomas sends the same signal.
A five-member majority of the Supreme Court reversed. Id. The majority declined to follow several circuits' lead in recognizing "professional speech" as a separate category of speech, explaining:
Id. at 2372 (alterations, citations, and quotation marks omitted). The Court concluded the state had failed to identify "a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles." Id. at 2375.
Along the way, Justice Thomas's opinion recognized that the Court had, at times, "applied a lower level of scrutiny to laws that compel disclosures in certain contexts." Id. at 2372. Of note, in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), the Court applied a lower standard to a rule requiring lawyers who advertised their services on a contingency-fee basis to disclose that clients might have to pay some fees and costs. Justice Thomas, though, gave Zauderer a narrow reading, holding it applied only to laws compelling disclosures of "uncontroversial information about the terms under which" advertised services will be available. Becerra, 138 S.Ct. at 2372 (quoting Zauderer, 471 U.S. at 651, 105 S.Ct. 2265). He concluded the Zauderer standard did not apply to the California notice requirement, as it compelled disclosure of information about state-sponsored services and concerned a topic — abortion — that could hardly be considered "uncontroversial." Id.
Becerra counsels against the State's position here. First, it reaffirms the bedrock principle that content-based laws are presumptively unconstitutional. See Becerra, 138 S.Ct. at 2371. Second, it notes the Court's reluctance to recognize exceptions to this rule, absent "persuasive evidence of a long (if heretofore unrecognized tradition)" of regulation. See id. at 2372. That would be difficult for the State to show here, as its briefs make no claims that laws compelling publishers to make election-related disclosures have much of a history in this country. Lastly, Becerra signals that pre-Reed precedents according diminished First Amendment protection to certain categories of speech ought to be read narrowly.
The State urges me to take the opposite approach here, advising me to apply the Buckley "exacting scrutiny" standard more expansively than the Supreme Court or any federal appellate court have ever applied it. My reading of Reed and Becerra persuades me that this would be improper. The applicable standard, I am convinced, is strict scrutiny. This is the standard I will now apply.
Under strict scrutiny, the government bears the burden of showing the challenged regulation "furthers a compelling interest and is narrowly tailored to achieve that interest." See Reed, 135 S.Ct. at 2231 (quoting Bennett, 564 U.S. at 734, 131 S.Ct. 2806).
The State's briefing on Plaintiffs' motion does not bother to argue the Act is capable of surviving strict scrutiny, placing all its bets on the applicability of the exacting scrutiny standard, which I have rejected. Nevertheless, at a hearing on Plaintiffs' motion, counsel for the State said he was "not prepared to concede" the point, arguing that an opportunity to further investigate the issue through the discovery process might bolster the State's position. Counsel also suggested that the Act's requirements may yet be "refined" (translation: narrowed) in such a way as to survive strict scrutiny as the State Board of Elections exercises its power to promulgate regulations under the Act.
These are not the arguments of a party that is confident in its case. To begin, the issue before me at this stage of the litigation is whether Plaintiffs' First Amendment claim is likely to succeed on the merits. See Winter, 555 U.S. at 20, 129 S.Ct. 365. Surely, it can always be argued that discovery might uncover facts that strengthen one party's position. The State, though, has not identified any specific points of contention in this case that demand clarification through discovery. The mere, ever-present possibility that some unknown and unanticipated new facts will emerge to prop up the non-moving party's case is no reason to deny the moving party a preliminary injunction that is otherwise justified.
The State's other argument — that future regulations may refine the Act's requirements — is equally unpersuasive. The only way regulations could "implement" the Maryland statute in a way that would allow it to survive strict scrutiny would be to narrow its impact to such an extent that it would be contrary to what was enacted by the Maryland legislature. But, of course, "[r]egulations cannot overrule the statute under which they are promulgated." Kemp v. Seterus, Inc., No. PJM-18-472, 348 F.Supp.3d 443, 447, 2018 WL 3159070, at *4 n.1 (D. Md. June 27, 2018); see Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002) ("A regulation cannot stand if it is `... manifestly contrary to the statute'" (quoting United States v. O'Hagan, 521 U.S. 642, 673, 117 S.Ct. 2199, 138 L.Ed.2d 724 (1997))). If, as Plaintiffs contend, the Act is unconstitutional, it is rather difficult to see how regulations might save it. Only legislative action could.
That said, it remains the Plaintiffs' burden to show their claim that the Act fails strict scrutiny is likely to succeed on the merits. See Winter, 555 U.S. at 20, 129 S.Ct. 365. Here, that means Plaintiffs must show the Government is unlikely to satisfy its burden, either on summary judgment or at trial, of establishing, first, that the Act furthers a compelling interest and, second, that it is narrowly tailored to achieve that interest.
The first point does not appear to be in dispute. See Pls.' Mem. 18 ("assuming" the state has a compelling interest in combatting foreign meddling in U.S. elections). That is only right, as I would think it evident that states have a compelling interest in preventing foreign governments and their nationals from interfering in their elections. See Bluman v. Fed. Election Comm'n, 800 F.Supp.2d 281, 285-86 (D.D.C. 2011) (Kavanaugh, J.) (upholding, under strict scrutiny, a federal law barring
While it appears to me that the Act's primary purpose was to combat foreign meddling in the state's elections, this was certainly not its only aim. See Test. of Common Cause Maryland, ECF No. 24, Ex. C (urging the bill's passage because "both unethical domestic campaigns and hostile foreign campaigns used social media to spread" disinformation in the 2016 election (emphasis added)). The requirements that both political actors and publishers make certain disclosures in connection with online ads appear to serve two broader goals: informing voters about the source of online ads and deterring corruption. See Md. Code Ann., Elec. Law §§ 13-306(b)-(d), -307(b)-(d), -405(b)-(c). These, for purposes of a strict-scrutiny analysis, are also compelling governmental interests. See McConnell, 540 U.S. at 205, 124 S.Ct. 619 ("[T]he Government has a compelling interest in regulating advertisements that expressly advocate the election, or defeat of a candidate for federal office."); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 356, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (explaining that disclosure of candidates' expenditures serves a state's compelling interest in "lessen[ing] the risk that individuals will spend money to support a candidate as a quid pro quo for special treatment after the candidate is in office").
But the difficulty for the State is that, under strict scrutiny, it must demonstrate that the challenged provisions of the Act are "narrowly tailored" to promote those interests, meaning that "no `less restrictive alternative' would serve" its purposes. Cent. Radio, 811 F.3d at 633 (quoting United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)). There are two ways a regulation may fail this part of the test. First, a regulation may be unconstitutionally overinclusive in that it "unnecessarily circumscribes protected expression." Id. (quoting Republican Party of Minn. v. White, 536 U.S. 765, 775, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002)). Alternatively, a regulation may be unconstitutionally underinclusive, as where it "leaves appreciable damage to the government's interest unprohibited." Id. (quoting Reed, 135 S.Ct. at 2232).
Maryland's statute fails for both reasons. It regulates substantially more speech than it needs to while, at the same time, neglecting to regulate the primary tools that foreign operatives exploited to pernicious effect in the 2016 election.
I begin with the publication requirement, Md. Code Ann., Elec. Law § 13-405(b), which strikes me as the most problematic of the Act's provisions. This
The veritable infiniteness of cyberspace does not cure this constitutional infirmity. I grant that requiring state-mandated disclosures to appear on a news website does not necessarily take up space the site's owner might otherwise devote to other content. See Tornillo, 418 U.S. at 256-57 & n.22, 94 S.Ct. 2831. The requirement fails strict scrutiny regardless, though, because of its "intrusion on the function of editors." Id. at 258, 94 S.Ct. 2831. The Supreme Court's opinion in Miami Herald Publishing Co. v. Tornillo makes precisely this point, concluding that a "right of reply" statute compelling newspapers to print a political candidate's response to critical coverage would violate the First Amendment "[e]ven if [the] newspaper would face no additional costs to comply with [the] compulsory access law and would not be forced to forgo publication of news or opinion." Id. The Court explained:
Id. This respect for a publisher's right to exercise "editorial control and judgment" is not reserved for print media alone; it applies with equal force to outlets that publish content on the Internet.
The State cannot — and, in fact, does not — argue that the publication requirement is the least restrictive means available of achieving its interest in informing the electorate because, as it happens, Maryland campaign finance laws prescribe other means of obtaining the same information. These laws require political committees to report all of their expenditures to the State Board of Elections. See Md. Code Ann., Elec. Law §§ 13-304(b)(1), -309(a), (c). They require similar reports from people who make at least $10,000 in independent expenditures or spend at least that much on political ads during an election cycle.
The state inspection requirement also fails strict scrutiny. While certainly less offensive to the First Amendment than the publication requirement, see Riley,
Even if I were to conclude that such impositions on the press might be tolerable under the First Amendment, the Act's state inspection requirement — like the publication requirement — would still be unconstitutionally overinclusive. This is because the Act imposes its obligations on any and all "online platforms," a term it defines to include "any public-facing website, web application, ... social network, ad network, or search engine" that accepts ads and that can claim "100,000 or more unique monthly visitors or users for a majority of months during the immediately preceding 12 months." Md. Code Ann., Elec. Law § 1-101(dd-1). This definition casts a wide net. It is broad enough to ensnare not only Facebook, Instagram, and other social media giants that foreign operators are known to have exploited, but many news sites as well, including smaller, regional sites. See Publisher Affs., ECF Nos. 9-5 to -9. And yet, the State has not been able to identify so much as a single foreign-sourced paid political ad that ran on a news site, be it in 2016 or at any other time.
It is clear enough that a state could fashion a more narrowly tailored regulation than the one Maryland has enacted. New York, in fact, has done just that; its definition of "online platform" closely resembles Maryland's but requires the site to have at least 70 million "unique monthly United States visitors or users for a majority of months during the preceding 12 months." 9 N.Y. Comp. Codes R. & Regs. 6200.10(b)(12) (2018). I do not mean to suggest that the threshold in Maryland must be in line with the one in New York — which, after all, is a considerably more populous state. Strict scrutiny, though, demands an exceedingly tight fit between the regulation's burdens and its aims. It seems unlikely that Maryland will be able to show that a less expansive definition of "online platform" would detract in any way from the Act's goal of neutralizing foreign influence in the state's elections.
This alone would justify a determination that Plaintiffs' First Amendment claim is likely to succeed on the merits. Ultimately, though, the Act appears to suffer from an even more fundamental defect in that it solely targets "qualifying paid digital communications" — which is to say, political advertisements a buyer pays to place on an online platform. See Md. Code Ann., Elec. Law § 1-101(11-1). As the legislative history of the Act and the Albright declaration make clear, the primary evil the Act was intended to redress was unpaid Internet postings (many of which mentioned no election or candidate at all) on social media sites that are not news publishers. Thus,
Strict scrutiny is demanding, to say the least. See Williams-Yulee v. Fla. Bar, ___ U.S. ___, 135 S.Ct. 1656, 1666, 191 L.Ed.2d 570 (2015) (noting that speech restrictions withstand strict scrutiny only in "rare cases"). Here, there is simply no way the State can show its law is the least restrictive means of achieving its compelling interest in deterring or exposing foreign attempts to meddle in its elections. I conclude Plaintiffs will likely succeed in demonstrating the Act fails strict scrutiny.
As I have noted, the State made little attempt to argue its statute could overcome strict scrutiny. Its brief asserts, instead, that the applicable standard of judicial review is the "exacting scrutiny" standard the Supreme Court promulgated in Buckley, and that Maryland's law survives this level of scrutiny. While I am under no obligation to decide this question, I have thoroughly reviewed the parties' arguments and the case law, and I am satisfied the State's argument is unavailing. I will pause here to explain why the Act would not pass muster even under this lesser standard of review.
Citizens United explains that the "exacting scrutiny" standard "requires a `substantial relation' between the disclosure requirement and a `sufficiently important' governmental interest." 558 U.S. at 366-67, 130 S.Ct. 876 (quoting Buckley, 424 U.S. at 64, 66, 96 S.Ct. 612). This standard is certainly less rigorous than strict scrutiny. Even so, as the Seventh Circuit has stated, exacting scrutiny "is not a loose form of judicial review." Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 840 (7th Cir. 2014); see Minn. Citizens, 692 F.3d at 876 ("[E]xacting scrutiny is more than a rubber stamp."). The appellate court explained:
Wis. Right to Life, 751 F.3d at 840-41 (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)).
In this context, "exacting scrutiny" does not require the government to show its interest is "compelling," with all that that word has come to entail in strict scrutiny cases. See Turner Broad. Sys., 512 U.S. at 680, 114 S.Ct. 2445 (O'Connor, J., concurring in part and dissenting in part) (stating that, under strict scrutiny, "[i]t is not enough that the goals of the law be legitimate, or reasonable, or even praiseworthy," but rather "[t]here must be some pressing public necessity, some essential value that has to be preserved"). Rather, it is enough for the State to show that the strength of its interest "reflect[s] the seriousness of the actual burden on First Amendment rights." John Doe No. 1, 561 U.S. at 196, 130 S.Ct. 2811 (quoting Davis, 554 U.S. at 744, 128 S.Ct. 2759). Here, though, I have already explained that the State has a compelling interest in the Act's primary aim of shielding its elections from foreign influence, as well as in its secondary goal of promoting electoral transparency. It necessarily follows, then, that these interests are "sufficiently important" to conceivably justify a campaign finance disclosure requirement under Buckley.
Of those cases, one strikes me as particularly instructive. In Buckley v. American Constitutional Law Foundation (ACLF), 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), which I discussed in brief above, the Court assayed a Colorado law that imposed disclosure obligations on ballot initiative proponents that employed paid petition circulators. The Tenth Circuit had preserved the statutory scheme in part but rejected provisions requiring proponents to disclose each circulator's name and address, along with the amount of money the circulator charged. 525 U.S. at 201, 119 S.Ct. 636. The Supreme Court affirmed, agreeing with the Tenth Circuit that forcing circulators to surrender their anonymity did little to advance the statute's goals, which were to inform voters about the moneyed interests behind a ballot initiative and deter corruption. Id. at 203-04, 119 S.Ct. 636.
ACLF provides a vivid example of a mismatch between a disclosure requirement's means and its ends. The requirement was not entirely devoid of value; as Justice O'Connor observed in her partial dissent, the requirement mandated the disclosures be made while circulation efforts were ongoing, which might conceivably have assisted members of the public in "evaluat[ing] the sincerity or, alternatively, the potential bias of any circulator that approaches them." ACLF, 525 U.S. at 224, 119 S.Ct. 636 (O'Connor, J., concurring in judgment and dissenting in part). But exacting scrutiny requires a showing that the means adopted by the state are sufficiently effective in achieving an important state objective without doing unwarranted collateral damage to First Amendment rights. The Colorado law failed this standard because its benefits, whatever they might have been, were too remote to justify the compelled disclosure. See id. at 203-04, 119 S.Ct. 636.
Maryland's statute similarly misses its mark. It is not that the Act promises no benefits whatsoever. Here, though, the publication and state inspection requirements appear ill suited to their missions in at least three ways: first, they are duplicative of other campaign finance disclosure requirements; second, they do not target the deceptive practices the Act ostensibly seeks to deter; and, third, they are poorly calibrated to prevent foreign operatives from evading detection.
I have already addressed the first of these defects. Under subsection 13-405(b) (the publication requirement), online publishers must disclose the identity of political ad buyers and the total amount paid for each ad. See Md. Code Ann., Elec. Law
Subsection 13-405(c) (the state inspection requirement) also overlaps with other campaign finance disclosure requirements. Specifically, this subsection requires online publishers to keep records that, among other things, identify the candidate or ballot issue to which each ad relates and whether the ad supports or opposes that candidate or ballot issue. See id. § 13-405(c)(3)(i). This is information state law elsewhere requires the groups or people who pay for political ads to themselves disclose. See id. § 13-306(e)(4).
To be sure, the state inspection requirement is not entirely duplicative. Several of its demands go farther than other Maryland campaign finance disclosure requirements — in particular, the obligation to maintain records of the dates and times the ads appeared online; an "approximate description" of the ad's audience and the "geographic locations" where it appeared; and the total number of "impressions" the ad generated. Id. § 13-405(c)(3)(ii), (iv)-(vi). Nowhere, though, has the State articulated its interest in this information. It is far from clear how forcing online publishers to reveal details about the number, demographic makeup, and geographical dispersion of visitors to their site might advance the Act's goals. This information does not offer voters any useful insights about the sources or funding of campaign ads or shine a light on any bribery schemes in which a candidate might be embroiled. See Buckley, 424 U.S. at 66-67, 96 S.Ct. 612. And, certainly, it is difficult to see how these disclosures might possibly contribute to the Act's chief aim of deterring foreign meddling in federal and state elections.
What is clear, at least, is that publishers have a legitimate grievance with a law that obligates them to cough up proprietary information about their customer base and the reach of their websites (information akin to circulation figures for traditional print media). The compelled disclosure of this information could expose their proprietary data — if not necessarily to competitors, then at least to the state, which may well count itself as a participant in the market for online ads. Given the risks, a publisher that prizes the privacy of its data might find it preferable to simply decline to accept political ads — a prospect that runs counter to the First Amendment's aim of promoting the free expression of ideas.
This leads me to the second of the Act's most critical defects: its failure to remedy the harms that inspired its enactment. I have already discussed this failing in some detail, and there is no need to repeat myself here. In short, the Act's publication and state inspection requirements overshoot their target by a wide margin. They regulate international, regional, and local websites alike, even as all available evidence suggests that foreign operatives largely confined their activities to Facebook, Instagram, and other global social media platforms. See Indictment at 5-6, Internet Research Agency, No. 18-cr-32-DLF; Albright Deck 7-8; Brennan Center Testimony 2. At the same time, the Act reserves its fire for paid political advertisements, even though it appears the Russian disinformation campaign relied far more heavily on fake websites and free social media posts. See Albright Decl. 6.
These are just two of the ways in which the Act's requirements and its aims are substantially mismatched. Plaintiffs have identified one more, and it concerns the
These infirmities separate Maryland's statute from the more traditional campaign-finance disclosure requirements that have withstood exacting scrutiny. See, e.g., Indep. Inst., 812 F.3d at 798; Del. Strong Families, 793 F.3d at 310-11; Justice, 771 F.3d at 299. The appellate courts' decisions in those cases reflect the continued vitality of the Buckley Court's pronouncement that requiring candidates, political committees, and other speakers to disclose details about their expenditures is often "the least restrictive means of curbing the evils of campaign ignorance and corruption." 424 U.S. at 68, 96 S.Ct. 612. Here, though, Maryland has promulgated a rather different type of statute — one with a distinct set of obligations and objectives. The State has not persuaded me that the Act's publication and state inspection requirements are substantially related to its aims. The method it has chosen to remedy an admittedly important state interest is ill suited to the task and threatens in the process to impose substantial burdens on Plaintiffs' First Amendment-protected rights of free speech and a free press. I conclude, accordingly, that the challenged portions of the Act likely would not overcome exacting scrutiny.
Of course, it is not enough for Plaintiffs to show their First Amendment claim is likely to succeed on the merits, as this is merely the first of the four factors a court must address on a motion for preliminary injunctive relief. Under Winter, Plaintiffs must also show they are "likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest." 555 U.S. at 20, 129 S.Ct. 365. Although the State has not said much to challenge Plaintiffs' arguments on these factors, I will briefly address them.
I start with the second factor (irreparable harm). Here, the analysis is straightforward. Maryland's statute trenches on Plaintiffs' First Amendment rights, which will irreparably harm Plaintiffs as a new election cycle gets under way. See Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) ("[T]he Supreme Court has explained that `loss of First Amendment rights, for even minimal periods of time, unquestionably constitutes irreparable injury.'" (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion))); Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 520-21 (4th Cir. 2002). The State's argument that the impositions on Plaintiffs are relatively
The third and fourth Winter factors are also easily satisfied. As these factors tend to raise similar considerations, courts often consider them in tandem. See Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 602 (4th Cir. 2017), vacated and remanded on other grounds, ___ U.S. ___, 138 S.Ct. 353, 199 L.Ed.2d 203 (2017); Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013). While, in rare cases, equitable considerations might counsel against enjoining an unconstitutional statute, see NAACP-Greensboro Branch v. Guilford Cty. Bd. of Elections, 858 F.Supp.2d 516, 526-27 (M.D.N.C. 2012), it is generally recognized that upholding constitutional rights is preferable to allowing a state to enforce an invalid law. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002). I have no difficulty concluding here that the balance of equities tips in Plaintiffs' favor and that preliminary relief is in the public's interest.
Plaintiffs have met their burden on all four of the Winter 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 § 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.
A separate order follows.
