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Washington Post v. McManus (Amicus Brief)

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.

Last Updated: October 29, 2019
Published: April 19, 2019

Summary

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.

Case Back­ground

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.

Docu­ments

Fourth Circuit Court of Appeals

District Court

Other