Having spent a good chunk of time over the past three years calling for state and national governments to do more to protect our election process, it will no doubt strike some readers as disingenuous to complain about a law that attempts to do just that.
But here goes.
The Maryland General Assembly has passed a law requiring newspapers to collect and publish information about who pays for online political ads. It also requires us to keep records of the ads for inspection by the state Board of Elections.
The goal is to prevent foreign interference in our local elections, and we applaud the good intentions. It is the execution that we take issue with.
Half a dozen newspapers, including the Washington Post and Baltimore Sun, and the Maryland-Delaware-D.C. Press Association, of which The Frederick News-Post is a member, have filed a lawsuit in federal court asserting the statute violates the First Amendment guaranteeing free speech and a free press.
In January, U.S. District Judge Paul Grimm agreed that parts of the law appear to encroach on the First Amendment. He granted a preliminary injunction to prevent the state from enforcing those provisions. The case was argued before the 4th U.S. Circuit Court of Appeals recently, and a decision is expected in the next several months.
The law would require any online advertising platform, including a newspaper’s website, to create a database identifying the purchasers of online political ads and how much they spend.
Because lawmakers wanted to include ads in state and local elections, they wrote it to apply to any digital platforms with 100,000 or more monthly U.S. visitors. That scoops up a lot of smaller newspaper websites.
New York passed a similar law, but it applies only to digital platforms with at least 70 million monthly visitors, such as Facebook, Google and other giants. Those were the kind of sites that were exploited by Russian and other foreign disinformation agents during the 2016 election campaign. Washington state and California have also passed updated election transparency laws.
Seth Berlin, our coalition’s lawyer, told the court that the law amounts to the government telling the press what to publish.
The newspapers also told the judge that free postings on social media — not paid political ads on newspaper websites — were the primary means used to try to undermine the 2016 election. The Maryland law will not do anything to prevent that.
“It compels newspapers to publish, regulates far more speech — and speakers — than necessary, and does nothing to combat actual foreign influence in our elections,” Berlin argued.
Maryland Assistant Attorney General Andrea Trento told the court:
“These modest burdens do not outweigh the State’s important interests in electoral transparency, deterring corruption, enforcing the substantive requirements of the campaign finance laws, and protecting against foreign meddling in the State’s elections.”
Gov. Larry Hogan allowed the law to take effect without signing it because he, too, had concerns about its constitutionality. He said he supported the law’s goals.
The disagreement over this law pits newspaper companies against many of our traditional allies in advocating for open government, including Common Cause Maryland.
Del. Alonzo Washington, a Democrat from Prince George’s County, is the bill’s lead sponsor. He pointedly criticized newspapers for our opposition.
“This coalition of newspaper and online media outlets, I think it’s concerning that they want more transparency in politics and in government, but when it comes to folks purchasing ads on their websites, they don’t think there’s a need for transparency,” Washington told The Associated Press.
It is somewhat uncomfortable to argue against more transparency in election advertising, but we believe that in this case the law has just gone too far. Maryland lawmakers must walk a very fine line on this issue. Our belief is that they have crossed the line into infringement on press freedoms and must reconsider.