you to speak up a little or make sure i hear you yes your honor maybe i'll speak into the microphone that my no no it's much better intended to modernize maryland's political advertising disclosure laws to reflect the changing mercial landscape political advertise it also did this against the backdrop of an unprecedented effort by four estate related actors to influence the two thousand and sixteen elections by digital advertising and social media activity the online electioneering transparency and accountability act for the st time posed disclosure in recordkeeping obligations on the online platforms political ads in maryland but it did so in a way that i'm the only the most modest additional burdens on the ushers of these online very social media i hope we dealing with a fairly narrow as applied challenge to the but to keep to the application of the act to the particular defendants in this county extents correct you know they have the district court ruling which is i understand it was an as applied roe invalidation of the act of a particular defendant here i thought that's all we were dealing with that's correct your honor and marilyn's case was a proper exercise of a slightly legislative rock interest in the outweighed the risk that individuals would be deterred from contributing to and it's their identities close in citizens united the court held that disclosure was a less restrictive alternative to more comprehensive regulations speech so w imposition of regulatory burdens upon participants direct participants in the electoral process the most obvious direct protests upon spinner candidates themselves and individual and super pac contributors here we have a difference not just in kind but in concept  because the regulatory burden is being imposed upon neutral rd parties who are not been sales participants in the electoral process that's correct your honor in citizens united  supreme court as well the set the standard that point for evaluating him pain finance disclosure requirements even when other parties are called on the me as voters was exacting scrutiny that dover says really case is another example where disclosure not satisfied in this case and your we believe that was the iranians for several reasons were the district court held that the state interests did not reflect the seriousness of the actual intermediate scrutiny i mean that's a difficult bar to clear exactly screw it is i mean strict scrutiny isn't impossible marduk the clear part of the problem i have is that i don't understand what limiting principle there is once re breached the line and say burden can be imposed on regulatory burdens can of this nature can be imposed on neutral rd parties the you could impose all kinds of disclosure requirements particularly on the internet where space  doesn't seem to be much of a limitation and the disclosure requirements here may seem to be relatively innocuous but what is to prevent more extensive disclosure requirements and some of especially for example to disclose all over corporate offices or to disclose the members of the board or to disclose what  not i just wanted to sort of look at the other side on that that is the state interests and i wasn't really sure how this furthered state interest so maybe you can i mean i just don't know how effective this was going to be how does  address foreign interference in elections well your honor i think it a further three state interests it further state interests in providing information to the electorate about who's spending money on behalf of candidates and what it will actually that's a state interest as well except that we couldn't go for an operative just withhold the information or give false information let me i just don't know how this can you know get at the root of that problem sure and i apologize your honor i was referring to a different interest there is the interest also of trying to the person placing it all flying out is noticed the publisher that they're replacing and now that that is true is subject to the regulations that you if a foreign malicious actor who wants to be bad things fail to give that notice in an attempt to find corresponding information about the information that the online form of otherwise than required loads but disco had the right well you still have the ad but but then the statute provides regulatory mechanisms for the state board of elections in after the foreign actor to go after well to the as the i resent that board of elections who have to be added removed the for an actor is largely going to be if it's a foreign actor there's only so much the state aren't going to be able to do what we can do with the state of maryland is trying to do is to stop the influencing by foreign actors of maryland's election but this is going to stop it with a regulation of political speech which is all which is which is the core of our democracy and here the speech that is most treasured treasured in our democracy is singled out for the regulation of political speech has always been this favored and here you're saying well we should allow add and by requiring these disclosures don't we run some risk of turning the publishers into the mouthpiece of the state used in history and you might think that these are innocuous impositions but i don't again see the limiting principle and i wonder but the danger with compel speech which the supreme court has been very sensitive about is that you you turn the regulated party into a mouthpiece for the state i mean this is and that's at that is a very significant step to take in terms of granting the state of maryland or any state authority over state of already over political speech and i just wonder whether we want political speech restricted to that to that extent it seems to me this is a very significant leap i political speech marketplace in a way they're trying to have it both ways it's just not there just these in our who was there are parties and that they shouldn't be required to impose or required comply with voter obligations when they're not the ones doing speaking but at the same time they're complaining that their air their editorial judgment and independence is being compromised by these regulations that are imposed on them and i think they can't have it both ways but to get to such weapons in your point about and content based regulation all campaign finance disclosure requirements our content is it's all geared towards if you're going to speak on these particular subjects in this particular manner and you're going to spend money for that you need to make these certain disclosures and so i don't believe that this is the leap that your arms serve out because it's it's already the kind of regulation that's imposed on other parties like broadcasters like radio  publishers compromise their position under the st amendment by deciding to accept political ads i mean that's one of the things that they do they play a role in the dissemination of political information which may help be a lecture it make up its make a wise choice and when you go into and and highly partisan but certain media are different in kind then we want them to be exercising editorial judgment with respect to as and with respect to content and with respect to all kinds of facts without compromising their position under the st amendment i mean they have a right to disseminate information to the electorate from  nonparticipating oregon without compromising their own st amendment rights your honor we we agree with their right to disseminate under the st amendment this kind of information but we think this case is just let the publishes from an entity in the industry that it regulate that covering it should be required to disclose that that is receiving consideration that this is the same situation these players are receiving consideration they're getting question and that is we haven't given as much attention to the inspection requirement in this act and the publishers here are required to keep rather extensive records and the of the possibility then exists that agents of the state are going to be coming in and examining those records in some detail for compliance with the statute and my question is don't doesn't the inspection requirement bring the state sanity's and the state is probably impossible but there comes a point where entanglement is something to be concerned of a out and that is particularly true where the attorney general is saying i have the authority to go into court and get a court order taking down the ad and by the way if a court order is violating i have the discretion to initiate a criminal prosecution and so how can that help but it exert a chilling effect upon speech when you give the state the authority with both civil and criminal sanctions to this is supervise this whole area it brings the state and the press into closer contact than i think the founders might have wished they wanted degree of separation not just between society from a totalitarian society is that people understand the media is not a state run media in north korea it's a state run media here it's not you see my concern frowned i understand your honor and i i i understand your concerns and they're valid concerns in this case we have a situation where there are requirements that are imposed on that's true of the broad the airwaves but it's not true of cable and satellite there is no scarcity over the cable networks and they're subject to very similar disclosure of it's because of the courts recognize the interest the public interest information disclosure mation about about who is funding political speech in or around the elections and with regard to the inspection issue that your honour's rightly concerned about in this case the the information that is required to be retained is all information provided by purchase and provided by the people who are putting ads the players themselves say the state should go get better information from the purchaser if they should come to us but we think that you're on the state of maryland has  could legislate an area even when there is an even anticipating in that case there was a court found the statute issue was under inclusive impermissibly under inclusive because it regulated print periodicals advertisements and  ask you one question about some of the supreme court precedent yes your honor the eternal which was the florida right to reply case and then hurley which was the parade case seem to indicate that the independence of editorial judgment applied to not just questions of opinion but to matters of fact an questions of advertising is way off and so those are two significant supreme court precedents which appear at least in my reading to say that there is a indicate that there is a broad scope to editorial judgment and if it does extend not that it does extend the advertising into five and i'd like to hear editorial about political issues about anything it wanted i think the state could reasonably require disclosure of a notice that it was being paid to do that and so i think what we have here are at iceman's which are right in nature how do you interest that well i guess your honor it's that the question of what's being asked to be disclosed here is just information about the advertisement that editorially and in their judgment they have already decided it's information about who right then because we if we went your way how would we square it with what supreme court has said in those other cases about advertising your honor in their protection it would you would square it by likening the disclosure obligations here to fundamentally a different question than what we have here would we re saying oh and by the way your editorial discretion doesn't apply when it comes to political speech of all things which is in fact the very thing you might think that an editorial discretion would apply to is something is central to our for the functioning of a democracy is political speech and to say that the if the if political speech is uniquely disfavored and you have to accept the burden with respect to political speech that you don't have to accept with other ads that would be equally if not of the political speech that reaches the electorate wouldn't that raise an eyebrow or two that the supreme court your honor if a handful of newspapers were to make that  required to disclose the amount paid and they're not paid is not something that tells you how much something costs we have any evidence that foreign operatives actually ran these kinds of political rants in these papers that would be governed by this ad ran on one of the plaintiffs and i have another quick question if there is this statute been copied in other states or did maryland statue copy another state is this some movement i can't speak to the drafting regular the statute we don't know how close it is to the statute there are there are some differences the plaintiffs have identified between new york the new york effort and maryland's effort you know washington is also moving the space and the federal i think the house do we not and to the far end of public information with disclosure requirements do not enhance the electorate ability to make an informed judgment the more we know about the provenance oh yeah and curtis wants well that's addressed in this statute in really  way don't fall platforms like my clients so the st is that in the ad itself and this has been one of the things that this statute did was made clear that this applied to online ads is that in the ad are about thirty pages from that website which we use those demonstrative people don't always go to another web site to get information it's or it's always best if the information comes packaged together well  packaged together under the statute right so the statute doesn't require there's a forty eight hour requirement or hey there's a forty eight hour time line lag and b it does not require anywhere in the statute that what the newspaper  that's in your hypothetical somewhat more adjacent to the ad but that right there is one of the reasons why the sat this act doesn't satisfy the level of scrutiny because it's one of the stated but it's another word maryland campaign finance law can require the complete package from the participant from the participant is exactly right so it's getting this information so the things if you took the perception of this statute that pertains to online platforms out of the statute where you didn't make it a political two for additional web sites with was i face book and twitter for a nd where there was a problem as opposed to newspapers other what i'm talking about just these defendants because i think this is an as applied agreed case agreed but yours you're saying that the same information can reach the public by by having the burden constitutional challenge in the you're saying that already giving up the i don't i don't get there's no additional information it's just where it comes from that is different is that what you're saying no that's i'm sorry i think i think we're having a misunderstanding  other political speakers will wire or read again separate from the section that's at issue here to move more dead from nation directly into the state board of elections to put it on it's the state boards website so the public gets that information into other ways what is in the body of the at and the nd is from the state board of elections website the state is basically saying we want to co opt other parts of the newspaper's website to basically do that a rd way which is in fact you know platforms like facebook and twitter and here you have a statute that regulates all west sites big and small in no and i hear you on that argument but there's really no reason why the government couldn't look at the past problems anticipation what future problems might be and try to deal with those problems right understand i mean in the words we don't know what the next who's going to be coming out is in what way in the next election but again that you were making that this is all basically duplicative that there are other places but isn't there a time issue you get it more in get you filed with the state board of elections usually there are times you have a certain number of days hours months i don't know i file and maybe on the website is there a difference in remember which will consume was asking your colleague about having it all in one parcel is that the difference i mean is that a difference if it is it is under the and if you're looking for what is the justification for intruders your heart argument is not the nature of the burden so much as on whom the particular burden is impose on who they are of clyde that opens up a whole new gateway of regulation that is potentially very destructive to st amendment problems is that right it's really but i hate to give them orders answer but the answer is right so the harm the harm of this and the decorations in the record on this are and we have a bunch of are you saying it's intrinsically burdensome i'm saying it's intrinsically burdensome because it crosses a line but i also sense practically bernsen because we have until october decorations in the record that say this is very expensive to implement and for especially for the smaller papers if we have to implement it we will have no choice but to stop it with a laugh right and we have that declaration from a political candidate who says when google which is a very large company made that same determination that this was too burd there is a substantial amount of harm and you know i'm not just here i'm not here only because there is a constitutional law on it we're crossing that shall not cross but because i have clients that as a practical matter are saying if we have to do this we really stop because it is very expensive and that's what the record shows so i don't want to diminish the actual or practical harm here the the practical harm such as who seems to me to be a a comparative one in the sense that it makes political advertising more burdensome than any other crime yeah and that's exactly the lesson of a case like reverses out of gilbert which is look if we're going to single out pop and it's wrong pointed out to us your friends are divorcing go out topic and the topic is political speech and we're going to burn that speech that's a problem and it's a real problem in this room on this record which is to say you  been really there wasn't much argument by either party and not least i ascertained about the inspection requirement right and that is a point as a matter of expense that's more of it's actually the most statute because whilst gathering bunch of data that they don't otherwise gather so you know you know i'm maybe that's right but in the world that we live even with the internet everything seems to be instantly gettable if you have the right tool to get it right right i mean and so i think and i'm going to listen i think it's a problem for the state to come in say by really expensive piece of software so you can do that in a while and think and amendment problem under city of los angeles st tell us why put that issue i want to come back to the on the constitutional problem because we talk some about practical harm but the constitutional problem here is is speaker where we apply the acting scrutiny and that really doesn't that that really should not be extended here because you have a  that are subject to additional regulation he says friesian from the united states versus stevens brown versus entertained purchase the proceeds from united states versus alvarez then we have we get to read and to the national institute family life advocates case where the supreme court is cautioning expanding these categories and while so that's the st thing and judge graham i think appropriately in the district court recognize that we do have competing lines of authority and the question is this is sort of unique under it and doesn't really fit comfortably into the other exacting scrutiny cases that dealt with the better disciplines in the campaign process and look at these other cases and said case about someone buying video games to minors the report says we know dark out the punishing rd parties for conveying protected speech is a problem in the eating and abetting in that case parental car and that was the state interest that was articulated and so we have  exactly scrutiny which is a hot somewhat lower than strict scrutiny form of scroope who files papers is that and mr treadwell actually agrees with this because he said it in his opening argument that citizens united what the court says is the sensually will let you spend what you want as long as you tell us who you are and it's high those two things together and it says that disclosure is the least restrictive off is the less restrictive alternative with having disclose who they are or of a campaign or a path they're making a different decision which is if you burn at this beach with a bunch of regulations and special armaments and injunctions and so forth i'm going to pass on that speech and i'm going to take advertisements for automobiles and washing machines and then the candidate is not left to decide for themselves whether the speech the rationale that allows for exactly scrutiny to be the form of scrutiny for a candidate or a  conclude otherwise you lose nothing i think the judge i mean the for the for the whole promise of the st part of my argument was that in fact the the i think there's an interesting philosophical legal issue in this case which is does example i'm not sure how we need to to pass on that out because nobody is contending that if this is deferential scrutiny and whether some of those voices arsed are strictly partisan and all those are independent carious or independent vehicles of overkill information but what you want is some information coming to the electorate from a variety of sources with a variety of different characteristics and a variety of posh and that all that in the mix helps to create the foundation for an informed electoral decision when you compromise any of those organs that that contributed to information in our election by changing its nature or by bringing the state in the closer contact with you begin to distort democratic or strict scrutiny in this case and the district court it wrapped with that issue i don't disagree with you that you could decide this case without us all nat west and the reason i say that is because as i said in the st part of my argument  exact level of scrutiny i think judge modest pointed out something that was very valuable and that is we don't know what the future will bring and you know suppose we don't know in the future what foreign entities are going to infiltrate wire and so it's just as good as a general rule not to do not to write to sweepingly into broadly in a is is preserving the integrity of of democracy and and a debt of by the threats to that integrity and that the threat to that integrity can come impingements on the freedom of the press but the threat to that integrity can also come from what has raised concerns about recent elections and that is foreign infiltration into various platforms and social media platforms are all of us but we don't know you know when we re we see through a crystal ball dark and so it's good not to just write in a way that that hand strengthens the ability of future courts to safeguard the integrity of the system that we of if i'm like that's what it's about if i might just speak to that briefly so we gave everybody lots of time but then again daniel webster  kerry i'm comparing both of you to daniel webster not just one well let me just say really two things do we have a screw discussion at the disk report about essentially this right and we feel very strongly that the protections that newspapers enjoy for what they publish and what they don't publish ought to be judged by the highest level of scrutiny in our constitutional constellation so that's why i'm the threats right my clients have published for under one hundred and fifty in some cases more than two hundred years and they have done so they have seen the government over time when you need to regulate based on some perceived threat whether it's you know they've got they've gone through world wars cold war labor movement civil rights movement national security concerns following september th and there's always some reason that the government is  freedom of the press and freedom of speech and usually when we look back on that we said that that threat was overstated in the necessary and this is in my judgment is just and in our judgment is just another one of those things because this statute does not do it the statute had been in place in two thousand and sixteen it would not have done anything that is how far in from interference that we're talking about now election and such is and that's true of a national level if you talk about you know ads in so when the legislature owes her or you also want to those periodicals the court held that that was sufficient even if up until that point but doesn't the requirement of heightened scrutiny be an intermediate scrutiny or strict scrutiny suspended demonstrate tangible harms before an infringement of st amendment freedoms is is  permitted there may be a limit to the ability of the state to act prophylactic lady on the basis of speculative harms because that opens the door to a wide variety a wrecker of regulation but it but this whole requirement that there be either a substantial state interest or compelling state interest depending upon the tier of scrutiny at least at least those two tiers of scrutiny require the benefit cation of tangible harms before the freedom of publication is curtailed  will more likely be on paid ads on social media or all of the paid advertisements in particular publications of the defendants here i don't understand for example  somebody would would be infiltrating the carroll county tabs or where have you but it's there has to be something tangible and concrete to justify continuing imposed by the burden both can be so great when compared to the interests and in this case there are several interests the foreign corporation is one that i know that of the plane just focus on the district or certainly focus on what are really exacting scrutiny test the mere place to see the ads that are running the carroll county times that least as they're directed placed in the county times and understand who's paying for them well on that point can i i'm sorry to interrupt but your colleague spent a fair amount of time talking about you get this in this is all redundant you in the public can find this information out easily otherwise when you have to say about that well several things st of all it's not redundant just as a matter what's really required state or much less on the basis of yes so it's not just a timing thing see i thought that was that you weren't getting all this information in a timely manner if you're just not getting some of it is we're trying is certainly one component of it but it's also a substantive the information is a always all the directors well i couldn't say for directors an example is just the persons with decision making control over the purse over there or the individual making the purchase and so what that does it it sure does sheds light on if there is a you know an individual purchasing the ad if there is somebody behind that individual who is who is funding the effort made the decisions for the organization that the initial on behalf of which is purchasing the public should be entitled to see them and that's something that th to tries to shed light on but couldn't you have so much of what you want to get out by a recon back in the sense to where we started them couldn't you get somewhat sure what you want to get out by regulating the participants in the political normally lack the statute requires all of the information that oh that they're required to disclose and retain the stature requires the purchaser to provide that information it's not something that they need to independently collect it comes from the purchaser so applied to the publishers and not the not the purchases handy civil and criminal sanctions also apply to the publishers and not the purchasers information together you're quite right it's the not the publishers but there still is some obligations because of the statute and some liability is such wilkinson says on them right there is some liability on how can that not only is the publisher that can be hard in the criminal court for violating the attorney general's order about the court order for polling their day on these these  are burned on own on publishers that's maybe burns on purchases too but the fact of them may be burned on purchases to supply certain information doesn't mean there aren't burdens on publishers to print the information and include the information in place the sanctions for not doing so in other words these are not mutually exclusive burdens it isn't a fact that the burden on one absorbs the burden on the other can be burdensome to both i mean that's isn't that a fair characterization of the statute i will not stand here and say that there is there is zero civil point well about which you are not disagreeing i don't think no i mean i'm not going to stand here and say there is there's zero there if you're over in the publishers of publishers have an obligation to produce the information disclose the information is provided by the purchasers talking about you know information disclosure information about who's a financial it disclosure of information that there is a there is a well established history that government is free to regulate with greater extent in this area would it be fair to say what just because all that is just a virtual record book i suppose that's one way of characterizing it that we're turnarounds in them too don't really want to put it on the front page of the purchasers whoever just to file all this information with the state board of elections i think there's a benefit to having that information where around where he said yes now it's true that the statute only were wires that the the publishers  disclose this information on the internet but what we have in the record we showed instances where facebook what it does to comply with marilyn's and other obligations what it does actually provide you can hover over an ad and it pops up with no right to a page that shows all these how to show it and and in theory the marketplace can sort out you know hey there's a good way of doing it look at what this property does and then iteratively moving forward maybe there will be some consensus that you know what the best way to how how best to display