## Facts

- Maryland enacted the Online Electioneering Transparency and Accountability Act to increase transparency for paid online political advertising.
- The Act applied to certain “online platforms,” including news outlets’ websites, that accepted payment for qualifying political advertisements and met audience thresholds.
- The Act required covered platforms to publish, within 48 hours of an ad purchase, information such as the purchaser’s identity, controlling individuals, and total amount paid.
- The Act also required platforms to compile and retain additional records for potential state inspection, including dissemination geography, targeted audience descriptions, run times, and view counts.
- Publisher-plaintiffs argued the Act compelled them to post state-mandated messages on their own sites and imposed burdensome compliance duties likely to deter carrying political ads.
- The district court granted a preliminary injunction on First Amendment grounds; Maryland election officials appealed.

## Issues

1. Whether the Act’s publication and record-retention requirements, as applied to publisher platforms that carry political ads, likely violate the First Amendment.
2. What level of constitutional scrutiny applies to these platform-focused political-ad disclosure obligations, and whether the Act survives that scrutiny at the preliminary-injunction stage.

## Decision

- The Fourth Circuit affirmed the preliminary injunction against enforcement of the Act as applied to the publisher-plaintiffs.
- The court held the Act is content-based because it targets political advertising and is speaker-based because it places obligations on certain intermediaries rather than on political advertisers.
- Without deciding whether strict scrutiny applied, the court applied exacting scrutiny and concluded the Act likely failed even that standard.
- The court emphasized the risks of compelled speech and “collateral censorship,” reasoning that burdens on intermediaries can predictably lead them to refuse political ads, reducing political speech.
- The court did not reach alternative challenges (including preemption and other constitutional claims), resolving the appeal on First Amendment grounds only.

## Legal Principles

- Content-based regulation of political speech is constitutionally suspect; political speech lies at the core of First Amendment protection.
- Laws that compel private entities to publish government-required messages on their own property can constitute compelled speech and receive heightened scrutiny.
- Under exacting scrutiny, a disclosure regime must be substantially related to a sufficiently important governmental interest.
- Even when governmental interests in voter information and election integrity are important, an indirect and burdensome scheme imposed on intermediaries may fail exacting scrutiny, especially where it risks chilling the dissemination of political speech.
- Courts may consider evidence that regulated platforms withdraw from hosting political ads as probative of chilling effects and inadequate tailoring.

## Conclusion

The Fourth Circuit held that Maryland’s effort to increase transparency for online political ads likely violated the First Amendment as applied to news outlets because it imposed compelled publication and extensive recordkeeping duties on intermediary platforms in a way not substantially related, under exacting scrutiny, to the state’s asserted interests.


Wash. Post v. McManus, 944 F.3d 506 (4th Cir. 2019)