Legal Newsline

Thursday, August 22, 2019

Newspapers fight Md. law on political ads; Attorney said lawmakers 'didn't care' about free speech concerns


By Carrie Salls | Sep 21, 2018

Eric Wang | Wiley Rein

ANNAPOLIS, Md. (Legal Newsline) – Newspapers like the Washington Post and the Baltimore Sun filed a lawsuit Aug. 17 against the members of the Maryland State Board of Elections and Maryland Attorney General Brian Frosh, challenging a new state law that imposes strict guidelines on publishers that publish political advertisements.

The suit was filed in the U.S. District Court for the District of Maryland and joining the Post and Sun are several other publishers, as well as the Maryland-Delaware-D.C. Press Association.

“This action challenges multiple provisions of a newly enacted Maryland statute, the Online Electioneering Transparency and Accountability Act, that purport to impose new, onerous requirements upon online publishers like plaintiffs who publish political advertising, along with various penalties if they do not comply,” the complaint said.

The law requires online platforms that publish political ads to retain a digital copy and maintain a public database of the person who purchased the ad and its cost. They must also send that information to the state Board of Elections within 48 hours of the ad being purchased if it is bought by a foreign principal.

The plaintiffs said the challenged provisions are unconstitutional under the First, Fourth, and 14th amendments to the United States Constitution.

"The challenged provisions purport to regulate paid political speech, which has been long recognized as core political speech," they say.

Wiley Rein LLP attorney Eric Wang is not in favor of Maryland’s law, which he said was supposed to serve as a guide for other states.

“If the new Maryland law was meant to be a model for other states to regulate online political speech, as its sponsors claimed, then we are not off to a good start,” Wang told Legal Newsline. “The law put politics ahead of good policy and was rushed through the legislature with little understanding of its provisions or its practical implications.”

Wang said he wrote an analysis of Maryland’s legislation when it was still in bill form “warning about the bill’s serious deficiencies, but the members of the General Assembly didn’t care.”

“The newspaper companies have put together an aggressive and serious challenge to the law, and I hope they succeed,” he said.

In addition, Wang said he authored an op-ed “urging (Maryland Gov. Larry Hogan) to veto the bill.”

Other plaintiffs in the suit include Capital-Gazette Communications Inc., which does business as The Capital; Carroll County Times LLC; APG Media of Chesapeake LLC, which publishes The Star Democrat, the Cecil Whig and the Maryland Independent; Community Newspaper Holdings Inc., doing business as the Cumberland Times-News; Ogden Newspapers of Maryland LLC, which publishes the Frederick News-Post; and Schurz Communications Inc., doing business as the Herald-Mail

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Institute for Free Speech Maryland Attorney General's Office The Washington Post U.S. Bankruptcy Court for the District of Maryland

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