The Washington Post and a group of other media organizations are challenging provisions of a Maryland law requiring increased transparency for sales of online political ads. A federal district judge in the District of Maryland preliminarily enjoined portions of the law as applied to the plaintiffs. The Brennan Center, represented by a team from the law firm Hogan Lovells led by partner Ira M. Feinberg, filed an amicus brief urging reversal of the trial court’s decision.
Maryland’s Online Electioneering Transparency and Accountability Act requires those who maintain online platforms that receive at least 100,000 unique visitors per month to create and maintain a public database of all requests they receive to purchase political ads, and to retain certain other information about such requests for inspection by law enforcement. The law is one of a number of state and federal legislative efforts to close loopholes in campaign finance disclosure rules exploited by Russia to meddle in the 2016 presidential election. The Brennan Center submitted public testimony in support of an earlier version of the law, which passed in 2018.
Plaintiffs’ lawsuit argues that the law should be subject to more stringent review than other campaign finance disclosure rules because it burdens third party sellers of advertising and that, as media companies, they should be exempt from its regulations. They brought their complaint before a federal district court judge in Maryland. On January 3, 2019, the court issued a preliminary injunction barring application of the law’s database on record-keeping requirements to the plaintiffs. The state appealed, and the case is now before the Fourth Circuit Court of Appeals.
The Brennan Center’s amicus brief argues that the district court erred in subjecting Maryland’s rules for sellers of online political advertising to more demanding constitutional scrutiny than other campaign disclosure rules. The brief also notes that while freedom of the press is a bedrock American value, media companies are not entitled to heightened First Amendment protection when they are not engaging in traditional press activities. Finally, the brief explains in detail the ways in which the district court misunderstood the jurisprudence governing campaign finance disclosure requirements and the specific justifications for Maryland’s law. Although Maryland’s law is not perfect, none of the district court’s reasons for enjoining it withstand scrutiny.
Fourth Circuit Court of Appeals
- Published Opinion (December 6, 2019)
- Amicus Brief of the Brennan Center for Justice (April 19, 2019)
- Brief of Appellants (April 12, 2019)
- Brief of the Appellees (May 31, 2019)
- Reply Brief of Appellants (July 3, 2019)
- Amicus Brief of the Campaign Legal Center (April 19, 2019)
- Amicus Brief of the Institute for Free Speech (June 7, 2019)
- Amicus Brief of the National Association of Broadcasters and NCTA (June 7, 2019)
- Amicus Brief of the News Media Alliance and 16 Media Organizations (June 7, 2019)
- Memorandum Opinion (January 3, 2019)
- Testimony on HB 981 by the Brennan Center for Justice (February 20, 2018)