Any media platform that accepts ads for political races and ballot issues in Washington State is aware of the state’s detailed rules that govern all forms of political advertising. Digital platforms, in particular, are concerned by state rules that require the platforms to maintain and make available to the public not only the information
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
- A judge in King County, Washington, released his decision finding that Facebook parent Meta intentionally violated the Washington State requirements
In a recent state court decision, a King County judge in Washington State concluded that Facebook violated state political disclosure rules by not publicly providing information about the sale of political ads relating to state elections and ballot issues, as required by state law. While there does not yet appear to be a written decision in the case, according to trade press the judge’s ruling rejected motions by Facebook parent Meta to have the law declared unconstitutional and to have penalties asserted by the State attorney general thrown out (see attorney general’s statement here). We have written much on this blog about FCC regulations relating to political advertising and have noted how those rules do not apply to online platforms. This case is but one example of how state laws are filling in some of the gaps in the regulation of political advertising.
As we wrote several years ago, the Federal Election Commission has only general rules requiring that paid online political advertising for federal offices have some identification of the sponsors of the advertising. The FEC in 2018 started a rulemaking proceeding to determine if the “stand by your ad” certifications required in most federal broadcast and cable candidate advertising (the requirement which obligates the federal candidate to say “I’m X and I approved this message”) should carry over into the online world. That proceeding has never been resolved – likely held up both because of the difficulty of resolving sensitive political issues at the FEC, and because of the inherent difficulty of adopting one-size-fits-all disclosure obligations for online media, where ads can range from TV-style videos to short tweets and textual messages to images displayed in virtual reality worlds. Carrying over broadcast-style regulation to these diverse platforms is a tricky fit.
Continue Reading As More Political Advertising Moves Online, State Laws Provide the Regulatory Framework for Disclosures and Recordkeeping
Late last week, the US Court of Appeals for the Fourth Circuit issued a decision in a case called Washington Post v. David J. McManus, upholding the ruling of the US District Court finding that the State of Maryland’s attempts to impose political advertising reporting obligations on online platforms to be an unconstitutional abridgment of these companies’ First Amendment rights. The suit was brought by the Washington Post and several other companies owning newspapers with an online presence in the State. Their arguments were supported by numerous other media organizations, including the NAB and NCTA. The Maryland rules required that online advertising platforms post on their websites information about political ads within 48 hours of the purchase of those ads. That information had to be maintained on the website for a year and kept for inspection by the Maryland Board of Elections for a year after the election was over. The appeals court concluded that the obligation to reveal this information was forcing these platforms to speak, which the court found to be just as much against the First Amendment as telling them to not speak (e.g., preventing them from publishing). As the court could find no compelling state interest in this obligation that could not be better met by less restrictive means, the law was declared unconstitutional.
The Maryland law required the following disclosures on the website of a platform that accepted political advertising:
- the ad purchaser’s name and contact information;
- the identity of the treasurer of the political committee or the individuals exercising control over the ad purchaser; and
- the total amount paid for the ad.
In addition, the platform had to maintain the following information for a year after the election and make it available to the State authorities upon request:
- the candidate or ballot issue to which the qualifying paid digital communication relates and whether the qualifying paid digital communication supports or opposes that candidate or ballot issue;
- the dates and times that the qualifying paid digital communication was first disseminated and last disseminated;
- a digital copy of the content of the qualifying paid digital communication;
- an approximate description of the geographic locations where the qualifying paid digital communication was disseminated;
- an approximate description of the audience that received or was targeted to receive the qualifying paid digital communication; and
- the total number of impressions generated by the qualifying paid digital communication
The appeals court found that this “compelled speech” forced these platforms to “speak” when they otherwise might not want to – the “speaking” being the mandatory publication of information on their website. The court also pointed to the potential of these rules to chill political speech, by compelling companies to reveal information about those who might otherwise not want to disclose that they are taking a position on a controversial issue or election. The court found that anonymity in political speech was part of a long tradition in the US, and it could subject those buying the political ads to harassment. Also, the added burden of collecting this information could cause platforms to reject political ads in favor of advertising where no such burden was imposed.
Continue Reading Court of Appeals Finds Maryland Law Imposing Political Disclosure Obligations on Online Platforms to be Unconstitutional – Finding Different Treatment of Broadcasters is Justified