4th Circuit Decision on Maryland Political File Law Could Have Implications for FCC Rules, Other State Laws
A 4th U.S. Circuit Court of Appeals decision this month could have implications for state political advertising disclosure rules and for the FCC’s recent clarifications of its own political file rules, said broadcast attorneys in interviews (see 1910170037). In Washington Post v. David McManus, the 4th Circuit ruled unconstitutional a Maryland law designed to combat election interference by requiring online platforms to disclose political ad buys. The 4th Circuit’s analysis could be used to challenge state and federal laws on disclosure of political ads for online platforms, and some of those rules affect broadcasters, said Wilkinson Barker broadcast attorney David Oxenford in a blog post. Disclosure rules aimed at online platforms in the state of Washington could create “undue burdens” for broadcasters in the state, said Washington State Association of Broadcasters President Keith Shipman.
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The 4th Circuit decision affirmed a lower court’s grant of an injunction against the Maryland law, which required online platforms to publish disclosures about political advertisers and retain the records of that information to be available for inspection. The 4th Circuit faulted the law for regulating speech based on content, compelling speech, and singling out political speech. “Maryland’s law is a compendium of traditional First Amendment infirmities,” said the majority opinion. Maryland argued in the case that its disclosure rule was similar to the FCC’s rules for broadcasters, but the judges said those rules differ from Maryland’s because the broadcasters are in a unique position, using government-allocated public spectrum.
The rationale for treating broadcasters differently from other platforms makes less sense in the current media marketplace, said Davis Wright First Amendment attorney Robert Corn-Revere. The court “suggested that broadcasters did not have the same interest in speech as did a newspaper,” said Oxenford. “I know many broadcasters would certainly dispute that characterization.”
The 4th Circuit panel ruled Maryland’s goal of preventing foreign interference in elections could be accomplished in less burdensome way, such as by requiring advertisers, rather than platforms, to disclose information to the state. Existing rules already require disclosure of political ad spending by advertisers, said Foster Garvey broadcast attorney Brad Deutsch. Those arguments could be applied in other states with laws in the same vein as Maryland’s, said Oxenford. “The First Amendment analysis by this appeals court would suggest that these efforts may also be subject to challenge.”
The rules in Washington state, created by the state’s public disclosure commission, could require broadcasters to keep political ad records longer than the FCC requires, Shipman said. In New York, similar disclosure rules place the burden on advertisers, said broadcast attorney Jack Goodman. “We respect and understand the concerns about transparency,” said Shipman, saying broadcasters are attempting to work toward a solution with the state.
Broadcast attorneys also told us the ruling against the Maryland law could also have implications for the FCC’s recent clarifications of its own political file rules, which NAB and several broadcasters appealed (see 1911180068). The ruling creates “further concern” about the constitutionality of rules like the FCC’s political file obligations, said Goodman. The government “can’t rely on private parties to be unpaid enforcement agents” for political file disclosures, said Goodman. The FCC’s rules haven’t faced direct constitutional challenge, and could be vulnerable to one, attorneys said. The agency should seek to reduce the burden of political file rules on broadcasters, Goodman said.
Not everyone believes the 4th Circuit decision has bearing on other rules. The ruling is binding only in the 4th Circuit, and because it's focused on the burdens and speech compelled from platforms, may not apply to other laws, said Campaign Legal Center’s Campaign Finance Strategy Director Erin Chlopak. The Campaign Legal Center filed in support of Maryland’s rules. In jurisdictions where the disclosure requirements don’t affect platforms, the case would have less applicability, she said. In Washington, the public disclosure commission is examining the possibility of having the state rather than the broadcasters archive political ad records, Shipman said. The court’s analysis is narrow and unlikely to apply to other rules, Chlopak said.