United States District Court, D. Maryland, Southern Division
W. Grimm, United States District Judge.
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.
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
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.
Maryland statute is among a number of state
responses 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),
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
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),
[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 that inspired the law at issue here -
included "sophisticated cyber espionage and
industrial-grade hacking." See Albright Decl.
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),
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.
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.
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.
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.
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.
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." Albright Decl. 8.
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),
Many of these ads alluded to the Black Lives Matter movement
and sought to stoke racial tensions. See Albright
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. 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
O3e48lc7-8a42-4438-a7da-93ff74bdaa4c; Sandy Rosenberg, My
Testimony - Unpolished, DelSandy.com (Feb. 20, 2018),
("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
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).
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. See Id. §
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
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).
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" (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,  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).
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
[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).
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,  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).
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
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.
Plaintiffs- 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.
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. 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.
parties have fully briefed the motion and presented arguments
at a hearing on November 16, 2018. See ECF Nos. 9,
9-1, 24, 31, 37.
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).
v. Natural Resources Defense Council, Inc. establishes
the familiar requirements for a preliminary injunction. Under
Winter, the plaintiff must show "that  he is
likely to succeed on the merits,  he is likely to suffer
irreparable harm in the absence of preliminary relief, 
the balance of equities tips in his favor, and  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).
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.
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.
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).
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 ...