The Washington Post v. McManus

          MEMORANDUM OPINION

          Paul W. Grimm, United States District Judge.

         In May 2018, as Americans were continuing to learn the details of a far-reaching Russian campaign to influence the 2016 U.S. presidential contest, the state of Maryland enacted a new law to combat foreign interference in its elections. The law, known as the Online Electioneering Transparency and Accountability Act (the "Act"), sought primarily to curb foreign nationals' exploitation of Facebook, Instagram, and other social media sites, but its reach was broader than that, extending to many established newspapers' websites. It requires social media sites and news sites alike to self-publish information about the political ads they run and to make records about those ads available for state inspection.

         The Act's passage into law spurred an immediate response from the Washington Post and other media outlets with an online presence in Maryland. The outlets (collectively, "Plaintiffs") brought this action in federal court to enjoin enforcement of the portions of the Act applying to online publishers, primarily (but not exclusively) arguing that the disclosure and record-keeping requirements codified at Md. Code Ann., Elec. Law § 13-405 violate their First Amendment rights of free speech and a free press. The issue before me at this stage of the proceedings is whether Plaintiffs are entitled to a preliminary injunction.^[1]

         I conclude that Plaintiffs' First Amendment claim is likely to succeed on the merits. This conclusion stems from my determination that the Act's impositions on online publishers are subject to strict scrutiny and that they most likely would not withstand this form of judicial review. I further conclude that, even if I were to analyze the statute under the more forgiving standard of "exacting scrutiny," the Plaintiffs have shown they would likely prevail. As I am satisfied, as well, that Plaintiffs have met the other requirements for preliminary injunctive relief, their request to preliminarily enjoin enforcement of section 13-405, as applied to them, will be granted.

         FACTUAL BACKGROUND

         The Maryland statute is among a number of state responses^[2] to revelations that Russia exploited social media in a campaign to sway public opinion in the United States ahead of the 2016 presidential election. The details of the Russian operation are still emerging; in fact, roughly one month after the hearing on Plaintiffs' motion for preliminary injunctive relief, the U.S. Senate Select Committee on Intelligence announced the release of two reports chronicling Russian efforts to sow discord in the United States. See Press Release, U.S. Senate Select Comm. on Intelligence, New Reports Shed Light on Internet Research Agency's Social Media Tactics (Dec. 17, 2018), https://www.intelligence.senate.gov/press/new-reports-shed-light-internet-research-agency% E2%80%99s-social-media-tactics. While there is nothing in the Federal Rules of Evidence or the Rules of Civil Procedure that prevents me, at this stage of the proceedings, from considering the reports' findings or other facts that have been widely reported in the press, see G. G. ex rel. Grimm v. Gloucester Cty. Sch. Bd, 822 F.3d 709, 725-26 (4th Cir. 2016) (stating that courts may consider potentially inadmissible evidence when ruling on a motion for preliminary injunction), vacated and remanded on other grounds, 137 S.Ct. 1239 (2017) (mem.); Herb Reed Enters., LLC v. Fla. Entm't Mgmt., Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013), the narrow issue before me does not demand an exhaustive retelling of the story here. I will instead confine my review to a limited number of sources. These include a set of indictments the special counsel for the U.S. Department of Justice secured in February 2018 against Russian nationals suspected of attempting to meddle in the 2016 election. See Indictment, United States v. Internet Research Agency LLC, No. 18-cr-32-DLF (D.D.C. Feb. 16, 2018), ECF No. 1. Beyond that, I will look to the record in this case, which includes a handful of reports, affidavits, and declarations purporting to summarize the role that Russian subterfuge played in the 2016 national and Maryland elections.

         A.

         For many Americans, the extent of the Russian online operations began to come into focus in January 2017, when U.S. intelligence agencies released a declassified report summarizing Russia's campaign to shape U.S. public opinion. See Office of Dir. of Nat'l Intelligence, Intelligence Community Assessment: Assessing Russian Activities and Intentions in Recent U.S. Elections (Jan. 6, 2017), https://www.dni.gov/files/documents/ICA201701.pdf [hereinafter ICA Report]; Albright Decl. 4-5, ECF No. 31-1. The report, representing the joint findings of the Central Intelligence Agency ("CIA"), Federal Bureau of Investigation ("FBI"), and National Security Agency ("NSA"), concluded that Russian President Vladimir Putin had personally ordered the operations as part of a broader strategy to "undermine public faith in the U.S. democratic process" and to damage the Democratic nominee's chances in the November 2016 presidential election. See ICA Report, supra, at 1. The campaign encompassed a range of tactics, which -beyond the online trolling^[3] that inspired the law at issue here - included "sophisticated cyber espionage and industrial-grade hacking." See Albright Decl. 5.

         In March 2017, then-FBI Director James Comey revealed in testimony before the U.S. House of Representatives Permanent Select Committee on Intelligence that the FBI was investigating Russian efforts to interfere in the 2016 election. In re Grand Jury Investigation, 315 F.Supp.3d 602, 621 (D.D.C. 2018). Two months later, the Acting Attorney General appointed Robert S. Mueller III to serve as Special Counsel for the U.S. Department of Justice to investigate "(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.04(a)." U.S. Dep't of Justice, Office of the Deputy Attorney Gen., Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/press-release/file/967231/ download. The special counsel's investigation, which remains ongoing, has yielded a multitude of criminal prosecutions, including two sets of grand jury indictments against alleged Russian operatives. See Indictment, United States v. Netyksho, No. 18-cr-215-ABJ (D.D.C. July 13, 2018), ECF No. 1; Indictment, Internet Research Agency, No. 18-cr-32-DLF.

         In the first of those cases, a grand jury on February 13, 2018, indicted three Russian companies and thirteen Russian nationals, linking them to an extensive campaign to conduct what participants allegedly described as "information warfare against the United States of America." Indictment at 6, Internet Research Agency, No. 18-cr-32-DLF. The indictment accuses a St. Petersburg-based organization known as the Internet Research Agency of spending millions of dollars and employing hundreds of people to post divisive and inflammatory material on social media sites in 2015 and 2016. See Id. at 5. Operatives allegedly created hundreds of phony accounts and group pages on Facebook, Instagram, Twitter, and other social media platforms. See Id. at 14-15. As the U.S. presidential nominating contests were heating up, participants purportedly used these accounts to disparage candidates the Russian government disfavored, while promoting those it preferred. See Id. at 17. Other posts encouraged members of minority groups, including African Americans and Muslims, to boycott the election or vote for a third-party candidate. See Id. at 18.

         The indictment also asserts that, between April 2016 and November 2016, members of the Internet Research Agency, acting under assumed false identities, bought advertisements on "U.S. social media and other online sites expressly advocating for the election of then-candidate Trump and expressly opposing" his Democratic rival, former Secretary of State Hillary Clinton. See Id. at 19, 23. Several of the advertisements the organization placed on Facebook promoted pro-Trump rallies it had planned. See Id. at 25, 27, 30. The organization did not report its expenditures to the Federal Election Commission ("FEC"). See Id. at 19.

         A declaration included with Plaintiffs' reply brief in this case expands on the special counsel's assertions, filling in details about the Russian plot. Jonathan Albright, director of the Digital Forensics Initiative at the Tow Center for Digital Journalism at the Columbia University Graduate School of Journalism, explained that his research into foreign interference with the 2016 election has shown that the primary weapons in the Russian disinformation campaign were unpaid social media posts, rather than paid advertisements. See Albright Decl. 6. For the most part, the operatives' posts made no explicit references to the election or to any particular candidates. See Id. at 6-7. More typically, the posts commented on controversial issues like race, gun rights, or immigration in hopes of stoking "outrage, fear, and frustration" among American social media users. Id. at 7.

         Albright's research also identified a considerably smaller volume of foreign-sourced paid content. See Id. at 7-8. Most of this content - Albright uses the term "paid posts" - appeared on Facebook and Instagram, which offered a variety of tools and services featuring "sophisticated algorithms" that enabled clients to precisely target people who might be particularly receptive to their message. Id. at 8, 10; see Brennan Center Testimony 2, ECF No. 24, Ex. A. For example, he says, Russian operatives used a Facebook tool known as Custom Audiences to deliver highly targeted messages to people who had visited misleading websites and Facebook pages the operatives had created. See Albright Decl. 8.^[4] As with the unpaid posts, these posts generally did not refer to any particular candidate for office, but rather sought to inflame social media users' passions on hot-button issues. See Id. at 7; Brennan Center Testimony 2. Some of the posts, according to Albright, "were completely unrelated to politics and seemingly used to collect personal information for future targeting and social engineering purposes."^[5] Albright Decl. 8.

         Testimony by senior counsel for the Democracy Program at the Brennan Center for Justice during a Maryland House of Delegates committee hearing on the Act indicated that Russian operatives had Maryland residents, in particular, in their crosshairs during the run-up to the 2016 election. See Brennan Center Testimony 2. Counsel noted the operatives "targeted socially polarizing Facebook ads to the Baltimore area, which was experiencing mass protest movements and high tensions" at the time. Id. A transcript of counsel's testimony cited a news article quoting a congressman as stating that Russians targeted 262 ads to Marylanders during the election. Id. (citing Changez Ali & J.F. Meils, GOP Senator: Maryland One of Three States Most Targeted by Russian Ads in 2016, Delmarva Now (Nov. 2, 2017), https://www.delmarvanow.com/story/ news/local/maryland/2017/11/02/maryland-russian-facebook-ads-campaign/826688001/). Many of these ads alluded to the Black Lives Matter movement and sought to stoke racial tensions. See Albright Decl. 7-8.

         B.

         It was in February 2018, amid the uproar over Russian meddling in American political affairs, that Maryland legislators - noting an absence of any federal statutory or regulatory activity aimed at thwarting foreign interference in its elections - resolved to act and introduced the bill at issue here. While presenting the legislation in the House of Delegates, the bill's sponsors testified that its aim was to stop foreign powers - Russia, in particular - from interfering in Maryland elections in the future.^[6] See Hearing on H.B. 981 Before the H. Comm. on Ways & Means, 438th Sess. (Md. 2018) (statement of Del. Alonzo Washington) ("This bill is made to make sure that these types of acts do not happen here in the state of Maryland."), available at http://mgahouse.maryland.gov/mga/play/eb5126c2-5f0b-4512-a03cc37cel8el59c/7catalog/ O3e48lc7-8a42-4438-a7da-93ff74bdaa4c; Sandy Rosenberg, My Testimony - Unpolished, DelSandy.com (Feb. 20, 2018), http://www.delsandy.com/2018/02/20/my-testimony-unpolished/ ("The bottom line here is, we need to act to address clear attempts to disturb [, ] to destroy our political process ... ."). The sponsor of a companion bill in the state Senate made a similar case while introducing that bill a few weeks later, decrying reports of foreign influence in the 2016 election and describing the legislation as a "first attempt to sort of unveil the iron curtain." Hearing on S.B. 875 Before the S. Comm. on Educ, Health & Envtl. Affairs, 438th Sess. (Md. 2018) (statement of Sen. Craig Zucker), available at http://mgahouse.maryland.gov/mga/play/0fl83b99-dfef-4eb4-8dbe-blf6369a3d56/?catalog/03e481c7-8a42-4438-a7da-93ff74bdaa4c.

         The bill, as enacted, expands the scope of the state's existing campaign finance laws to cover online political ads. See 2018 Md. Laws 834. It does this, in part, by redefining the terms "public communication" and "electioneering communication," as they appear in Maryland's election laws, to include a limited subset of campaign materials that are posted for a fee on websites, social networks, search engines, or other online platforms. See Id. (codified at Md. Code Ann., Elec. Law §§ 1-101(dd-l), (11-1), 13-306(a)(6), -307(a)(3)). This change ensures that disclosure requirements the state long has imposed on purchasers of TV, radio, and print ads also apply to purchasers of online ads. See Elec. Law §§ 13-306(b)-(d), -3O7(b)-(d).

         The Act goes farther. One section empowers the state administrator of elections to investigate potential violations of the laws governing online political ads. See Id. § 13-405.1. Another bars political ad buyers from using foreign currency to make their purchases.^[7] See Id. § 13-405.2(b).

         The Act's other revisions to the state's election law, which Plaintiffs challenge here, impose a series of duties on "online platforms" that feature paid political ads. The Act defines "online platform" as

any public-facing website, web application, or digital application, including a social network, ad network, or search engine, that:

(1) has 100, 000 or more unique monthly United States visitors or users for a majority of months during the immediately preceding 12 months; and

(2) receives payment for qualifying paid digital communications.

Id. § 1-101(dd-l). For sites that come within this definition, the Act imposes what essentially boils down to two requirements. The first, which I will refer to as the "publication requirement," obligates the online platform to post information about political ads on the platform's own website. See Id. § 13-405(b). The second, which I will call the "state inspection requirement," imposes on the platform a duty to keep records in connection with each qualifying ad and make them available to the State Board of Elections upon request. See Id. § 13-405(c).

         The publication requirement is found in section 13-405(b) of the Maryland Election Law. Under this provision, an online platform that agrees to place a "qualifying paid digital communication"^[8] (which, for the sake of simplicity, I will refer to as an online "political ad," or just "ad") must compile information about the transaction, which, as a general matter, must include the buyer's identity and the total amount paid for the ad. See Id. § 13-405(b)(6)(i)-(ii). The platform must post this information, in a searchable format, within 48 hours of the purchase, ^[9] placing it "in a clearly identifiable location on the online platform's website." Id. § 13-405(b)(1)-(3). The information must remain on the platform's site for at least one year after the general election to which it relates. See Id. § 13-405(b)(3)(ii).

         The state inspection requirement, found in section 13-405(c), imposes separate recordkeeping obligations. Here, the platform must preserve a digital copy of the ad and maintain records containing the following information:

(i) the candidate or ballot issue to which the [ad] relates and whether

[it] supports or opposes that candidate or ballot issue;

(ii) the dates and times that the [ad] was first disseminated and last disseminated;

(iv) an approximate description of the geographic locations where the [ad] was disseminated;

(v) an approximate description of the audience that received or was targeted to receive the [ad]; and

(vi) the total number of impressions generated by the [ad].

Id. § 13-405(c)(3). These records must be maintained for one year after the general election and must be turned over to the State Board "on request." Id. § 13-405(c)(1)-(2).

         The publication requirement and state inspection requirement are functionally distinct, but they operate as part of a single scheme. To facilitate compliance with both obligations, the Act requires online platforms to provide ad buyers with a way of notifying them when an ad they are seeking to place comes within the statutory definition of a "qualifying paid digital communication." See Id. § 13-405(a)(3). The Act puts the onus on ad buyers to provide the notice to the platform at the time they place the ad, see Id. § 13-405(a)(1), and to supply the platform with the information it will need to comply with both the publication requirement and the state inspection requirement, ^[10] see Id. § 13-405(d)(1). The platform does not incur any duties to publish information on its website or make records available for state inspection unless and until the buyer provides the notice. See Id. § 13-305(b)(1), (c)(1).

         The Act took effect on July 1, 2018. See 2018 Md. Laws 834, § 2. Governor Larry Hogan allowed the bill to become law without his signature. See Letter from Governor Larry Hogan to S. President Thomas V. Mike Miller Jr. & H. Speaker Michael E. Busch (May 25, 2018), available at https://governor.maryland.gov/wp-content/uploads/2018/05/EWS-HB981-SB875-Online-Electioneering.pdf. A statement he issued on the eve of the bill's enactment explained that, while he found the bill's goals laudable, he had "serious" concerns about its constitutionality and had reservations about the prospect of "coerc[ing] news outlets protected by the First Amendment to publish certain material." Id.

         C.

         Plaintiffs^[11]- a coalition of Maryland- and Washington, D.C.-based newspapers and a regional press association - brought this suit in August 2018, seeking a preliminary injunction to block enforcement of certain portions of the Act roughly three months ahead of the 2018 general elections. See Compl., ECF No. 1; Mot. for Prelim. Inj., ECF No. 9. Commendably, the parties soon afterward entered into a memorandum of understanding, in which the State agreed it would not require Plaintiffs to comply with the new law before the Court rules on the motion for preliminary injunction. See ECF No. 18.

         Plaintiffs' motion raises several constitutional arguments. Chiefly, it argues that Md. Code Ann., Elec. Law § 13-405 - the portion of the law that compels online publishers to publish information on their websites and make records available to the state - violates the First and Fourteenth Amendment guarantees of free speech and press, both facially and as applied to Plaintiffs.^[12] See Pls.' Mem. 2, ECF No. 9-1. Plaintiffs also argue this provision is unconstitutionally vague and that it authorizes an unconstitutional seizure of papers in violation of the Fourth Amendment. See Id. Finally, they assert the Act is preempted by the Communications Decency Act of 1996, 47 U.S.C. § 230. See id.

         The parties have fully briefed the motion and presented arguments at a hearing on November 16, 2018.^[13] See ECF Nos. 9, 9-1, 24, 31, 37.

         DISCUSSION

         A preliminary injunction serves to "protect the status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court's ability to render a meaningful judgment on the merits." In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003); see Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). As a preliminary injunction is an "extraordinary remedy," it "may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

         Winter v. Natural Resources Defense Council, Inc. establishes the familiar requirements for a preliminary injunction. Under Winter, the plaintiff must show "that [1] he is likely to succeed on the merits, [2] he is likely to suffer irreparable harm in the absence of preliminary relief, [3] the balance of equities tips in his favor, and [4] an injunction is in the public interest." Id. at 20; see Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). The Court may grant the motion "only if the moving party clearly establishes entitlement to the relief sought." Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017).

         A.

         In reviewing a motion for preliminary injunction, a court must separately consider each of the four Winter factors. See Di Biase, 872 F.3d at 230. I begin, accordingly, with the matter of Plaintiffs' likelihood of succeeding on the merits.

         "A plaintiff need not establish a 'certainty of success,' but must make a clear showing that he is likely to succeed at trial." Id. (quoting Pashby, 709 F.3d at 321). Here, because I conclude that Plaintiffs are likely to succeed on their claim that portions of the Act violate their First and Fourteenth Amendment rights of free speech and freedom of the press, I need only address this issue for purposes of evaluating their likelihood of prevailing on the merits.

         The dispute over the Act's constitutionality underscores the tension between two competing interests in Free Speech Clause jurisprudence. The first and most readily apparent of these is, of course, the individual's interest in free expression - i.e., the speaker's interest in speaking. The other is the broader public's interest in minimizing the societal harms that would be all but certain to flow from an absolute, unchecked right to say anything at any time, in any place, and in any manner the speaker so desires. See Thomas I. Emerson, Toward a Theory of the First Amendment, 72 Yale L.J. 877, 907-08 (1963).

         The text of the Free Speech Clause unequivocally protects the first of these interests, declaring in no uncertain terms that Congress "shall make no law . . . abridging the freedom of speech." U.S. Const, amend. I. It is long since settled, though, that the Clause does not strip the government of all power to regulate speech. See Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 482 (2007); Konigsberg v. State Bar of Calif,366 U.S. 36, 49-50 & n.10 (1961). The modes of analysis courts have employed in their efforts to identify the limits of governmental authority in this arena have evolved over time, maturing into the doctrinal, category-based approach courts employ today. See Richard H. Fallon Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1274-85 (2007); Note, Free Speech Doctrine After Reed v. Town of Gilbert, 129 Harv. L. Rev. 1981, 1982 (2016). This approach ...