As Facebook continues its attempt to get Washington state’s political ad rules tossed for supposedly violating the First Amendment, attorneys for the social media giant keep on citing an under-noticed case from Maryland, Washington Post vs. McManus.
With the presidential election now mostly in the rearview mirror, and with Congress likely to make a fresh run at online political ad regulation next year, it’s time to explore what the McManus case was, and was not, about.
McManus arose in response to a 2018 law approved by Maryland’s legislature, a good summary of which can be found in the same federal appeals court ruling that ultimately struck key parts of the law down.
“Following the 2016 election,” judges for the Fourth Circuit Court of Appeals in Virginia recounted, “legislators determined that Maryland’s existing campaign finance regulations largely failed to cover the internet.” Continuing to unspool the law’s origin story, the federal appeals court judges wrote:
This presented a problematic blind spot. For one, the 2016 election marked an important shift in how campaigns were waged, with a surge in spending on online political advertising by candidates and political organizations. Moreover, 2016 also involved pervasive attempts by foreign nationals to influence American elections by way of the internet. These efforts were particularly prevalent in Maryland, which by some accounts was one of the top three most targeted states in 2016. Against this backdrop, Maryland decided to develop legislation that would bolster the state’s campaign finance regulations.
Maryland did this, the appeals court wrote, “with a particular eye toward combatting foreign meddling.” In addition to expanding the reach of the state’s campaign finance regulations so that they would cover online political ads, Maryland’s new law attempted to make the sources of online ads clearer to the public. To do this, it required that online platforms post, on their web sites, information about the purchasers and prices of digital ads targeting Maryland’s elections.
This became known as the Maryland law’s “publication requirement.” Because it applied to pretty much any web site that received more than 100,000 unique visitors each month and sold political ads targeting Maryland, the “publication requirement” swept in many newspaper web sites, including the web site of The Washington Post.
This alarmed the Post, as well as a wide array of the nation’s leading journalism outlets. But before explaining why, it’s important to flag one major political ad seller that wasn’t troubled by the Maryland law: Facebook.
In April 2018, Facebook’s vice president for state policy, Will Castleberry, told The Baltimore Sun that the company helped shape the Maryland legislation and looked forward to implementing it. Castleberry added: “We believe this bill will be a national model for the other 49 states to follow.”
The Post and other newspapers did not see things this way. Seeking to block enforcement of the new law, they sued David J. McManus, Jr., Chair of the Maryland State Board of Elections, arguing that while political ad transparency is important, a law that has the government telling newspapers to publish specific content plainly violates the First Amendment. Federal judges agreed, and by the spring of 2020 the relevant portions of Maryland’s new law were officially dead.
A few months later, Facebook, which had once expressed hope that the Maryland law would be “a national model,” was in court on the other side of the country and energetically using the Fourth Circuit’s evisceration of the Maryland law to argue that another state’s political ad disclosure system should be scrapped, too.
It was August and Facebook attorney Winn Allen, during oral arguments in the case of Washington State vs. Facebook, was telling a Seattle judge that the McManus decision compels striking down Washington state’s political ad disclosure requirements. From a First Amendment perspective, Allen said to King County Superior Court Judge Douglass A. North, the Washington and Maryland laws “are materially similar. And, if anything, your honor, the Washington law is more problematic than the Maryland law.”
Judge North declined to give Allen and Facebook what they wanted: a ruling that Washington’s political ad disclosure system violates the First Amendment, plus an immediate dismissal of Washington State Attorney General Bob Ferguson’s lawsuit seeking to punish Facebook for repeatedly failing to comply with state transparency rules.
“Certainly, Mr. Allen, the McManus case provides some interesting law that may be relevant here,” Judge North said at the time. But he also pointed out that a deep factual record had been developed in the McManus case before the Fourth Circuit judges ever ruled on it.
No such record has yet been developed in Washington State vs. Facebook, and rather than snuff the case out before discovery could even begin, Judge North denied Facebook’s request to immediately dismiss the case. This allowed Attorney General Ferguson’s “expansive” requests for internal Facebook documents to move ahead as the lawsuit proceeds toward a scheduled trial next year.
And what does Attorney General Ferguson make of Facebook’s claims about the relevance of McManus? Does Ferguson agree that Washington state’s political ad disclosure law is, to use Winn’s words, “more problematic” than the unconstitutional provisions of the Maryland law?
In court filings, Ferguson has argued to Judge North that “Facebook’s reliance on Washington Post vs. McManus is misplaced.”
For one, the political ad disclosure laws in Washington and Maryland have “significant” differences, Ferguson said, chief among them that Washington state has never imposed a “publication requirement” on newspapers or any other political ad-sellers in order to achieve transparency.
“It was this Maryland requirement—mandating that information about political ads be posted on the newspapers’ websites themselves—that the McManus court found particularly troublesome as applied to the press,” Ferguson said in a July filing.
Instead, Washington state gives political ad-sellers a choice of several options for providing the public with required information about the money and individuals behind political ads. Ad sellers can allow interested parties to inspect the data in person. They can arrange to share it by email. Or, if an ad-seller prefers, it can publish the information online.
In addition, Ferguson noted, the McManus lawsuit was brought by a coalition of newspapers publishing in Maryland. These newspapers were supported, in the form of amicus briefs, by a long list of major news outlets based outside of Maryland, including The New York Times, the Associated Press, and the National Association of Broadcasters. All of these respected news providers were arrayed against enforcement of a Maryland law that, it’s worth repeating, Facebook helped craft and hoped would spread nationwide.
In Washington state, Ferguson pointed out in his July filing, the situation is very different. Washington’s disclosure law was originally crafted by good government activists in the 1970s. Although online political ads had yet to be invented, the activists wrote their legislation using broad enough language that the new form of advertising ended up being covered when it appeared.
Specific rules flowing from that 1970s-era law have been updated over the years by the Washington State Public Disclosure Commission, which enforces state campaign finance law. For example, the commission unanimously passed a rules update in 2018 with an eye toward making sure that online platforms understood their political ads were covered and knew exactly what types of disclosures were expected from them.
Newspapers, radio stations, and television stations in Washington have long complied with state disclosure rules when it comes to political ads. None of these news providers is presently in court asking to have Washington’s system struck down as a violation of the First Amendment.
The Fourth Circuit’s McManus ruling, Ferguson argued, was a specific reaction to a lawsuit brought by newspapers and was based “substantially on the special First Amendment solicitude traditionally afforded newspapers.”
Facebook, as it often reminds policymakers, is not a newspaper. “In contrast to the newspapers in McManus that were concerned about loss of editorial control,” Ferguson’s July filing said, “Facebook is a large social media corporation whose content is almost entirely generated by third parties.”
This large social media corporation is presently the only party asking Judge North to void Washington state’s political ad disclosure rules.
The McManus case is sure to come up again (and again) as Washington State vs. Facebook plows ahead. Judge North, for one, has already indicated that McManus “may be relevant here,” and Facebook, for its part, has shown a repeated interest in reminding Judge North about the harshness with which federal judges dismissed the Maryland law for having a “compendium of traditional First Amendment infirmities.”
But even as the federal judges ruled that Maryland’s law “burdens too much and furthers too little,” they also made clear that they believe the Maryland law was based on “admirable goals.” In addition, they made an effort to convey their sympathy for the exceedingly difficult line states must walk when it comes to securing elections in the digital era, writing:
Within our federal system, states are tasked with striking a difficult balance in administering elections. On the one hand, the marketplace of ideas resists governmental regulation. The First Amendment guarantees that all citizens shall be free to speak their piece on the issues of the day, and that government cannot meddle in the debate that takes place among the governed. On the other hand, for a democracy to reach its full potential, intervention is occasionally necessary to promote transparency, facilitate an educated populace, and deter corruption. As Justice Brandeis put it: “Sunlight is said to be the best of disinfectants.” And sunlight also can serve First Amendment values.
The changing nature of elections and the novel technological challenges accompanying them have made the states’ managerial tasks more difficult. How states choose to carry out their responsibilities has long merited our respect. But that respect has bounds—and here, Maryland has crossed them.
Washington state’s disclosure law may be different from the now-junked Maryland law in significant ways. The finished case of Washington Post vs. McManus may be different in its origins and procedural posture than the ongoing case of Washington State vs. Facebook. But the central question that Washington State vs. Facebook raises may ultimately end up being similar to the one the Fourth Circuit judges outlined above.
The present case asks: Is Washington state’s disclosure regime for online political ads out of bounds? Or is it necessary to preserve informed democracy in the face of “novel technological challenges”?
A few of the stories I’ve been reading this week:
• “Constantly dehumanized” — A star Google artificial intelligence researched who aired frustrations with the company in an internal email was fired. Her work examined the biases of AI.
• “Battle for the soul of the internet” — How Biden succeeded with a much nicer online strategy than Trump.
• “Major overhaul” — Facebook is trying to improve its algorithm for finding hate speech. Previously, the algorithm was “race-blind.”
• “Parler’s got a porn problem” — Who could have predicted this would happen to a conservative-funded social media platform that prides itself on having very little content moderation?
• “Starting to think for themselves” — Police drones in Chula Vista, California.
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