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Judge Bars Enforcement of Online Political Ad Law on Media

ANNAPOLIS, Md. (AP) — Parts of a Maryland law aimed at stopping foreign interference in local elections on social media platforms such as Facebook appear to encroach on the First Amendment, a federal judge has ruled.

The law requires certain media websites to self-publish information about the political ads they run online and keep records of them for state inspection. U.S. District Judge Paul Grimm granted a preliminary injunction Thursday to prevent the state from enforcing those provisions against media until the case is resolved.

“The 2016 election exposed alarming new vulnerabilities in this country’s democratic process,” Grimm wrote. “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.”

The Washington Post and other media outlets with an online presence in Maryland filed a federal lawsuit last year to block portions of the law from being enforced against online publishers.

Grimm’s order notes that the Maryland statute is among several states’ responses to revelations that Russia exploited social media in an effort to sway public opinion ahead of the 2016 presidential election. New York and Washington also updated election transparency in a similar fashion.

Grimm wrote that while he has “no cause to block its enforcement wholesale,” the plaintiffs persuaded him that both the publication requirement and state inspection requirement in the Maryland law are “most likely unconstitutional as it applies to these plaintiffs.”

Grimm wrote that he will schedule a call with attorneys in the case before determining what further proceedings are needed.

The law requires online platforms to create a database identifying the purchasers of online ads in state and local elections and how much they spend. Maryland’s law, crafted to catch ads displayed in smaller state and local elections, applies to digital platforms with 100,000 unique monthly visitors.

Grimm noted that Maryland’s threshold of 100,000 visitors made the law very broad compared to New York’s law, which has a threshold of at least 70 million visitors. Grimm wrote that Maryland’s law “casts a wide net” that is broad enough to cover not only Facebook and other social media giants that foreign operators are known to have exploited, but many news sites as well, “including smaller, regional sites.”

“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,” Grimm wrote.

Grimm also found that the Maryland law doesn’t appear “to remedy the harms that inspired its enactment,” because its publication and state inspection requirements “overshoot their target by a wide margin.”

“The State has not persuaded me that the Act’s publication and state inspection requirements are substantially related to its aims,” Grimm wrote. “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.”

The law took effect July 1. The Maryland State Board of Elections has subpoena power under the law to find out how many Maryland voters are targeted on social media. If the board finds ads may have been purchased by a foreign entity prohibited from buying them, the board can seek the removal of the ads from the platform.