Wash. Post v. McManus

• Citation: 355 F.Supp.3d 272
• Decision Date: 03 January 2019
• Docket Number: Case No.: PWG-18-2527
• Parties: The WASHINGTON POST, et al., Plaintiffs, v. David J. MCMANUS, Jr., et al., Defendants.
• Court: U.S. District Court — District of Maryland

355 F.Supp.3d 272

The WASHINGTON POST, et al., Plaintiffs,

v.David J. MCMANUS, Jr., et al., Defendants.

Case No.: PWG-18-2527

United States District Court, D. Maryland, Southern Division.

Signed January 3, 2019

Seth D. Berlin, Dana Green, Pro Hac Vice, Ballard Spahr, LLP, Washington, DC, Paul Safier, Pro Hac Vice, Ballard Spahr LLP, Philadelphia, PA, for Plaintiffs.

Andrea William Trento, Office of the Attorney General, Baltimore, MD, for Defendants.

MEMORANDUM OPINION

Paul W. Grimm, United States District Judge

In May 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.

The 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 injunction.¹

I 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.

FACTUAL BACKGROUND

The Maryland statute is among a number of state responses² 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), https://www.intelligence.senate.gov/press/new-reports-shed-light-internet-research-agencyE2% 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 , ––– U.S. ––––, 137 S.Ct. 1239, 197 L.Ed.2d 460 (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, 2018 WL 914777 (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 Maryland elections.

A.

For 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), https://www.dni.gov/files/documents/ICA_2017_01.pdf [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 US 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 trolling³ that inspired the law at issue here – included "sophisticated cyber espionage and industrial-grade hacking." See Albright Decl. 5.

In 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), https://www.justice.gov/opa/press-release/file/967231/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.

In the 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.

The 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.

A 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.

Albright's research also identified a considerably smaller volume of foreign-sourced paid content. See i...