Congress passed § 230 of the Communications Decency Act of 19961 to reduce internet intermediaries’ liability for third-party content.2 In the first appellate case to interpret the scope of § 230’s protections, the Fourth Circuit read the statute broadly by invoking the collateral censorship theory.3 Collateral censorship is a form of indirect censorship that occurs when the imposition of liability on a private intermediary incentivizes it to censor another private party’s speech.4 Although the theory looms large in § 230 precedent, the Supreme Court has not extended it to First Amendment cases involving internet services.5 Recently, in Washington Post v. McManus,6 the Fourth Circuit relied on the logic of collateral censorship to invalidate a Maryland campaign finance disclosure law aimed at online campaign advertising.7 It did so under an exclusively First Amendment inquiry, despite the fact that plaintiffs had also claimed relief under § 230.8 By deciding the case on constitutional as opposed to statutory grounds, the Fourth Circuit took a step toward the constitutionalization of collateral censorship as a First Amendment basis for exempting internet intermediaries from otherwise applicable laws.
The 2016 U.S. presidential election revealed an online electioneering landscape that had far outpaced its regulatory counterpart.9 This revelation, coupled with partisan gridlock at the federal level,10 prompted several state efforts to extend campaign disclosure requirements to online advertising.11 Maryland’s Online Electioneering Transparency and Accountability Act12 was one such effort, and it imposed disclosure obligations on websites that reached a certain circulation and received payment for qualifying ads.13 First, platforms had to disclose on their websites “the identity of the purchaser, the individuals exercising control over the purchaser, and the total amount paid for the ad” (the “publication requirement”).14 Second, platforms had to collect and maintain a more extensive record for inspection by the Maryland Board of Elections upon state request (the “inspection requirement”).15 Shortly after the law took effect, a group of news outlets filed for a preliminary injunction, alleging facial and as-applied violations of the First Amendment, among other issues.16
The district court granted the news outlets’ motion.17 The court limited itself to the outlets’ First Amendment claim, finding that the law was a content-based regulation of political speech and therefore subject to strict scrutiny.18 While the court acknowledged that “First Amendment case law is fertile with exceptions to the various fundamental rules,”19 it maintained that this case did not fit within any of those exceptions.20 Specifically, the court rejected the State’s argument that the Act fell under the campaign finance disclosure exception articulated by the Supreme Court in Buckley v. Valeo,21 and that it should thus be viewed under the less burdensome “exacting scrutiny” standard.22 Still, the court found that the Act would fail even under the less stringent standard of exacting scrutiny.23 Maryland appealed to the Fourth Circuit.24
The Fourth Circuit affirmed on largely the same grounds.25 Writing for a unanimous panel, Judge Wilkinson26 detailed the “compendium of traditional First Amendment infirmities” afflicting the law.27 “First, the Act [wa]s a content-based regulation [of] speech” because it applied to “campaign-related speech” only.28 Second, the Act targeted political speech.29 And last, the court held that the law compelled speech by forcing the outlets to disclose on their websites information that they otherwise would not disclose.30 Moreover, the panel concluded that the Act’s inspection requirement also compelled speech by requiring platforms to “collect and retain” details on campaign ads “to be disclosed to state regulators upon request.”31
The State’s characterization of the law as a campaign finance regulation was unavailing. The court recognized that under Buckley and its progeny, content-based regulations of political speech through campaign finance disclosures are permissible, because although they “may burden the ability to speak,” they “do not prevent anyone from speaking.”32 But that logic is limited to regulations aimed at “direct participants in the political process,” not “neutral third-party platforms” whose primary interest is not political substance, but revenue.33 It reasoned that the Act’s disclosure obligations and their attendant compliance costs made hosting political ads financially more burdensome, deterring profit-oriented platforms from hosting political ads.34 The court found that this deterrence would “necessarily reduce[] the quantity of [political] expression,” and held that such a law was outside the scope of Buckley.35 The panel added that the Act’s application to the press was especially troublesome. Because media outlets’ advertising choices receive First Amendment protections, the publication requirement was an intrusion into the editorial discretion of the press.36 The inspection requirement was similarly problematic because it created an “unhealthy entanglement” between the state and news outlets.37
While the court declined to declare an exact standard of review for a disclosure law like Maryland’s,38 it held that the law failed even under the less demanding “exacting scrutiny,”39 which requires a “substantial relation” between an “important” state interest and the regulation.40 The court found that the law was underinclusive because it failed to address unpaid social media posts, the primary mechanism of foreign interference.41 And while the law applied to ads for specific candidates or ballot initiatives, it did not reach those focused on general, divisive issues, leaving the “vast majority” of foreign-placed ads untouched.42 The law was also overinclusive. The court reasoned that Maryland failed to provide evidence of foreign-sourced ads on news sites, and the Act did not properly distinguish among platforms based on size, susceptibility to foreign meddling, or electoral influence.43
Sometimes “the argument for a particular rule may be more important than the argument from that rule to the particular case.”44 That may be the case with McManus’s collateral censorship argument for exempting online intermediaries from the application of standard First Amendment doctrine. Although the Supreme Court has not extended collateral censorship to its First Amendment jurisprudence involving internet intermediaries, collateral censorship plays a significant role in statutory interpretations of § 230, including the Fourth Circuit’s.45 Given that the publishers had claimed preemption under § 230,46 the court could have reached the same substantive conclusion using the collateral censorship logic of its § 230 precedent. Instead, the court applied that logic under an exclusively First Amendment analysis. By so deciding, the Fourth Circuit took a step toward the constitutionalization of collateral censorship as a First Amendment basis for exempting internet intermediaries from otherwise applicable laws.
The court’s argument for exempting online platforms from the Buckley framework relied on the logic of the so-called collateral censorship phenomenon47: when the imposition of liability and compliance costs on private intermediary A incentivizes it to use its power to censor the speech of private speaker B.48 The Fourth Circuit reasoned that the Act’s compliance costs would disincentivize platforms from hosting political ads because, unlike primary speakers, intermediaries have a primarily financial rather than expressive interest.49 This concern aligns with collateral censorship theory, which argues that because of their “economic and instrumental” interests, online intermediaries are particularly susceptible to chilling effects50 and should therefore be overprotected from otherwise constitutional speech regulations.51 This theory is often used in arguments for shielding online platforms from liabilities that apply to traditional speakers or listeners.52 Moreover, collateral censorship can be characterized as a particular application of the speculative “chilling effects” inquiry,53 which considers the incidental effect of legitimate regulation on protected speech54 and, as in McManus, can result in “a constitutionally mandated exception to a general doctrinal rule.”55 But “chilling effects” is not a discrete doctrine,56 and given collateral censorship’s doctrinal hurdles, its invocation does not refute the novelty of McManus’s collateral censorship analysis.
One difficulty with McManus stems from the Supreme Court’s increasing aversion to speaker-based distinctions in the context of campaign finance regulations.57 McManus distinguished between direct political speakers and “neutral third-party platforms”58 by arguing that Citizens United limited the exacting scrutiny standard to disclosure requirements that “do not prevent anyone from speaking.”59 But the court’s interpretation is incompatible with Buckley’s analysis of disclosure requirements, which was endorsed by Citizens United.60 The Court in Buckley considered a facial attack seeking to exempt minority parties and independent candidates from such requirements.61 The Court foreclosed such facial attacks and rejected blanket speaker-based exemptions.62 It reasoned that although disclosures would “undoubtedly . . . deter some individuals,”63 the state’s substantial interests foreclosed challenges based on “highly speculative”64 or “generally alleged” harms.65 The Court found testimonies similar to ones in McManus too speculative to outweigh the state interest.66 Most importantly, the Court conceded that minor parties are generally more susceptible to chilling effects,67 but it did not carve out an exception to its exacting scrutiny standard as the court did in McManus. Citizens United upheld Buckley’s framework, so its statement that disclosure requirements “do not prevent anyone from speaking” could not reasonably be construed to limit the application of exacting scrutiny based on such generally alleged and speculative harms as those asserted in McManus.68 Rather, the statement should be understood as drawing a comparison between disclosure requirements and direct restrictions on speech — namely corporate campaign spending — not indirect chilling effects resulting from private censorship.69
The doctrinal difficulties of McManus extend beyond the Court’s campaign finance case law. As Professor Jack Balkin has noted, the “closest the Supreme Court has come to recognizing collateral censorship as a First Amendment issue”70 was in Smith v. California,71 which invalidated a municipal ordinance that imposed strict liability on booksellers for possession of obscene books, citing the risk that the penalty would incentivize booksellers to censor their wares.72 But the Court has not extended Smith-type protections to online platforms,73 which may explain Smith’s absence from the McManus opinion. As of now, there is general scholarly consensus that collateral censorship theory has not been widely adopted into the Court’s First Amendment analysis of state regulations,74 including cases involving election-speech intermediaries.75 Although the theory appears in cases involving private causes of action,76 challenges asserting the First Amendment rights of third parties are still typically subject to the traditional vagueness and overbreadth doctrines.77
Unlike the Court’s First Amendment jurisprudence, § 230 case law and scholarship have taken special notice of collateral censorship.78 The Fourth Circuit is no stranger to this trend. Indeed, Judge Wilkinson wrote the opinion in Zeran v. America Online, Inc.,79 “the seminal case that read [§] 230 broadly”80 by relying on the logic of collateral censorship.81 Section 230 preempts any state law cause of action or liability that is inconsistent with its grant of immunity.82 The Fourth Circuit interpreted this immunity to apply to “any cause of action that would make service providers liable for information originating with a third-party user of the service.”83 Although the language of § 230(c)(1) grants immunity only against claims seeking to treat platforms as publishers,84 courts have generally followed the Fourth Circuit in barring any claim arising from third-party content, regardless of the actual cause of action.85
Given collateral censorship’s relative force in § 230 precedent, the McManus court would have stood on firmer ground by resolving the case under § 230. Under Fourth Circuit precedent, § 230 bars liability on the basis of a service provider’s exercise of “traditional editorial functions,” which include decisions about “whether to publish, withdraw, postpone or alter content.”86 As the McManus plaintiffs rightly pointed out, Maryland’s law provided “for the removal of political ads on pain of contempt or criminal sanctions.”87 Therefore, the Act created liabilities for what amounts to publishers’ exercise of traditional editorial functions, which would have allowed the court to remand or affirm the case on statutory grounds.
Read broadly, McManus suggests that established First Amendment rules may be inapplicable to speech intermediaries whose business models refuse to internalize the harms of their practices, irrespective of the availability of alternative business models. But as Professor Mark Tushnet notes, it is not so clear whether the First Amendment should treat speech intermediaries’ business practices as inevitable, which is what the McManus court seems to assume.88 To the contrary, current copyright and defamation doctrines reject blanket intermediary exemptions despite the laws’ collateral censorship effects.89 A collateral censorship doctrine would need to address not only doctrinal implications for various areas of the law but also the extent to which its logic is limited to internet intermediaries. Insofar as collateral censorship theory demands a medium-specific approach, it may be to the internet what scarcity was to broadcasting: a distinctive feature resulting in “a distinctive place in First Amendment law.”90
Read narrowly, McManus avoids applying established First Amendment rules to a novel context while refusing to articulate a new rule.91 Given the novelty and significance of challenges like online election interference, the court’s hands-off approach demands an active legislative counterpart that can respond to the novelty that McManus recognizes.92 But legislatures act against a backdrop of established rules, and uncertainty about applicable doctrines may hamper legislative action. Under such conditions of legal uncertainty, legislatures will find it difficult — if not impossible — to address issues of online campaign advertising while respecting the Fourth Circuit’s undefined conception of the First Amendment’s reach.