This piece originally appeared in Washington Examiner on November 9, 2022.
A Washington state court in Seattle recently imposed a whopping $24.6 million penalty against Meta for political ads sold on Facebook in violation of the state’s campaign finance laws. Hailing the decision, Washington’s attorney general condemned the company for its “arrogance” and demanded that it “apologize for its conduct.” Pot, meet kettle.
While the social media giant’s political ad policies have (sometimes justifiably) come under bipartisan attack, Washington’s prosecution of Meta and the resulting judgment is a miscarriage of justice. The unreasonable fine is the largest by far ever imposed for a campaign finance law violation, and the underlying Washington law is itself an aberration.
At issue in the case is a Washington state law regulating anyone selling materials or services for vaguely defined “political advertising” or “electioneering communications.” Any vendor, from a print shop to a social media platform, must maintain and make publicly available certain information, such as advertisers’ names and addresses and amounts paid. This alone makes Washington an outlier. In a ruling against a similar Maryland law, a federal appellate court noted that campaign finance laws generally only impose disclosure obligations on advertisers — not the ad vendors. The anomalous nature of Washington’s law makes it inherently constitutionally suspect.
In 2018, the state’s Public Disclosure Commission made a bad law worse for digital advertising platforms. Without any legislative mandate, the agency required digital platforms to maintain minutiae about political ads, such as the demographic information for each ad’s target audience. It also imposed exacting specifications as to how and when the required information must be made available.
There were two fundamental flaws with the PDC’s rulemaking: one practical and the other legal. First, like many other bureaucracies, the PDC lacks any practical experience with the industries it regulates, and its rule was unworkable. For example, the rule fails to account for the fact that most digital ads are purchased through automated intermediaries such as “demand side platforms.” Ad costs typically are not determined until after the ads are displayed. This makes it impractical for the platforms to collect the information that Washington demands and publish it in the manner and time frame required.
Second, America’s courts have never recognized the type of record keeping and disclosure that Washington requires in this case as representing a “legitimate governmental interest.” Courts have only upheld laws that inform the public about the sources and magnitude of campaign spending, reasoning that such laws can deter corruption and provide valuable information to voters about who is backing a candidate or ballot question. The details about digital political ads that Washington requires online platforms to collect and publish may further neither of these interests.
In short, the interest that Washington sought to vindicate in its Meta prosecution was not a legitimate or constitutionally recognized public interest. Therefore, not only was the underlying action against Meta unjust, but the disproportionate penalty also violates the Eighth Amendment’s constitutional bar against “excessive fines” in light of the lack of any public harm.
Ironically, while brought under the guise of a “disclosure” law, the prosecution of Meta also restricts the availability of valuable information for Washington’s residents. Even before the state filed suit, Meta, Google, Yahoo, and others had stopped selling political ads altogether in Washington in response to the 2018 PDC rulemaking. Notwithstanding the company’s self-imposed Washington political ad ban, Meta inadvertently let through a relatively small number of regulated ads. This gave rise to the prosecution and demonstrates how online platforms are unable to comply with Washington’s exacting requirements in practice.
Online platforms will react to Washington’s overzealous prosecution and penalty against Meta by further restricting the availability of digital ads. As courts outside of Washington state have repeatedly recognized, political speech is at the core of the First Amendment. Digital ads make it possible for underfunded and underrepresented political candidates and causes to deliver their messages efficiently at a low cost.
Washington’s heavy-handed and unwarranted prosecution of digital ad platforms is an assault on free speech and the rule of law.