Amicus Brief: Maryland Online Speech Law a “Massive Overreaction”

June 7, 2019   •  By IFS Staff   •  
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Alexandria, VA – The Institute for Free Speech today filed an amicus brief in the online speech and press rights case, The Washington Post, et al. v. McManus. The brief says that a Maryland law regulating virtually all online publishers of political speech is unconstitutional.

“Maryland’s law brazenly violates the First Amendment rights of Internet speakers,” said Institute for Free Speech President David Keating. “It forces major newspapers like The Washington Post to publish information about their advertisers, which is inimical to a free press. The law restricts every speaker wishing to get their message out online.”

The law was passed in 2018 as a purported response to foreign interference in U.S. election campaigns. It defines “campaign material” to include Internet content that “relates to” a candidate, prospective candidate, ballot measure, or prospective ballot measure. This vague and sweeping standard would regulate speech about nearly any topic related to government or public policy.

Citing free speech concerns, Maryland Governor Larry Hogan did not sign the bill but allowed it to become law. The Washington Post, The Baltimore Sun, and other news organizations soon sued the state. In January, the United States District Court for the District of Maryland, Southern Division, ruled in favor of the newspapers. The state then appealed to the Fourth Circuit Court of Appeals.

“Maryland’s law is both overbroad and underinclusive,” the Institute’s brief explains. “It regulates virtually all paid online political activity, but does not concern itself with the primary weapon used by the Russian Federation in 2016: free online content.”

As the brief states, Maryland “is not following the well-tread path of federal campaign finance laws. Instead, it is striking out on its own, intending to fight foreign expenditures by imposing broad disclosure burdens on social media and newsgathering organizations.”

“Indeed, Maryland’s law requires press entities and Internet advertisers to amass vast amounts of information – every buyer of advertisements and their underlying donors – in order to possibly find a Russian spy posing as an American,” the brief notes.

The brief calls Maryland’s regulation of online speech “novel and comprehensive” and “a massive overreaction.” It says the lower court’s ruling should be upheld.

To read the Institute’s brief, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

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