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Nevada Broadcasters Association

Any media platform that accepts ads for political races and ballot issues in Washington State is aware of the state’s detailed rules that govern all forms of political advertising.  Digital platforms, in particular, are concerned by state rules that require the platforms to maintain and make available to the public not only the information required by some other states (and by the FCC for broadcast political ads) about the identify of sponsors, the price they have paid for their political advertising, and the issues they are addressing, but also a description of the demographics being targeted, and the total number of impressions generated by the ads.  Disclosures about other services provided to the advertiser by the platform (e.g., production or distribution services) and copies of the political ads themselves, are also required to be part of the material available for public review under Washington State law.  As we noted in our recent article on these rules and those of other states requiring disclosure of information about political advertising on digital platforms, the Washington State attorney general’s office brought an action against Meta, Facebook’s parent, for not providing to members of the public all the required information about such advertising in a timely fashion.  We noted that a King County judge had found that the company had violated the rules.  Since then, the judge imposed a fine of $24,660,000 on Meta (for 822 violations times the statutory penalty of $10,000 per violation, trebled based on a finding that the violations were intentional, repeated, by a company that should have been able to comply, and because the company refused to “acknowledge and take responsibility for its violations.”)  This is by far the largest penalty that we have heard of for violations of a state political disclosure law, and one of the few cases actually brought to court under these laws.  Meta almost immediately appealed this decision to the Washington Court of Appeals, where it remains pending.

The appeal bears watching by all digital media companies, as it is sure to raise some fascinating issues that could have far-reaching consequences for state regulation of political advertising.  In its motion for summary judgment in the Washington State proceeding, Meta raised arguments about the difficulties faced by a national company trying to comply with inconsistent and conflicting state laws in this area.  But perhaps more importantly, Meta also pointed to the Fourth Circuit Court of Appeals’ decision from 2019 throwing out Maryland’s political disclosure rules, which were similar in scope to those in Washington.  The Fourth Circuit’s decision, about which we wrote here, rejected as unconstitutional Maryland’s requirements that media outlets reveal information about their political advertising buyers, concluding that the requirements violated the media companies’ First Amendment rights, when a less restrictive means of informing the public about the identity of political speakers was available by requiring the political actors to themselves reveal the information.  We would expect that arguments about Section 230 of the Communications Decency Act (about which we wrote here and here), shielding platforms from liability for materials posted on them by others, will also be raised on appeal.  The state Court of Appeals is unlikely to be the last word in this case, as the national scope of these issues, and any conflicts with the Court of Appeals’ decision in the Maryland case, could well elevate this decision to one that establishes broader precedent for the industry.

Courtesy Broadcast Law Blog

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