Facebook Compelled to Comply With Washington Political Ad Transparency Law (Catch-Up Post)–State v. Meta

February 17, 2025 · by · in Content Regulation, Derivative Liability, Marketing

[This opinion from December got stuck in my blogging queue. I’m blogging it now as part of my ongoing efforts to highlight the censorial effects of mandatory editorial transparency laws.]

Washington’s Fair Campaign Practices Act “requires Meta to maintain certain records of the political advertisements it hosts on its platforms and, when requested, to permit inspection of, or to disclose, such records to those seeking such information.”

In 2018, the state claimed Facebook violated the law, and Facebook stipulated to a $200k judgment. Facebook also claimed it exited the Washington political ad market in response, but its ad library provided evidence otherwise. The state sued Facebook again in 2020. The superior court found that Facebook violated this law and awarded $35M in penalties and attorneys’ fees as well as an injunction. In December 2024, the appeals court affirmed everything.

First Amendment

The court says that campaign disclosure laws usually get “exacting” scrutiny (like intermediate scrutiny). Facebook argued for strict scrutiny, pointing out that Facebook doesn’t operate its own political campaign but is a publisher. The court disagrees:

Meta, however, offers no authority in support of the proposition that candidates and non-candidates’ disclosure obligations should be analyzed differently…

third-party platforms are indeed strongly motivated to comply with disclosure laws; namely, in order to continue receiving advertising revenue from candidates and political action committees and to avoid sanction

In support of this false equivalency, the court cites to the disclosure obligations of TV broadcasters, even though broadcasters are categorically more susceptible to regulation from a First Amendment standpoint than other types of publishers. Also, with respect to Facebook’s purported motivation to get the ad dollars, the court conveniently ignores that Facebook actually tried to exit the market entirely.

The court says that the government has a sufficiently important government interest: “the need to timely inform the electorate about who is expending money to influence an election in our state and how that money is being spent.”

To me, this framing of the state’s interest boxes the state in. The state can extract this information from political advertisers. The information does not need to come only from publishers. As a result, there may be a fit-mismatch between the interest and the solution which imposes financial and logistical burdens on publishers and inhibits their editorial decisionmaking, especially when enforcement actions are brought. See this article.

In response to the narrow tailoring issue, the state said that only Facebook knows the lookalike audiences it targeted on the advertisers’ behalf. That is, “the disclosure law is tailored to pull into the light of day the most essential and unique aspects of modern social media political advertising: micro-targeting.” I’m not sure how much extra value comes from getting detailed information about Facebook’s specific targeting decisions compared to the disclosures from advertiser about what targeting they requested.

The court is unmoved by Facebook’s burdens, repeatedly dismissing them because Facebook wasn’t specific enough:

Meta’s argument fails to quantify how “significant” the revisions to the algorithm would be, how much more “time and resources” it would take for human review, or even how much any change in its practices would cost….

none of Meta’s cited evidence indicates that it cannot comply; rather, the evidence only shows, as the State phrases it, that it would be inconsistent with Meta’s corporate priorities to do so.

The court makes it sound like Facebook didn’t prepare the case well, but more likely, the court is shifting goalposts. Whatever evidence Meta introduced, the court would surely have said that it was an insufficient burden because Meta is big and makes lots of money. In other words, without an objective test for what constitutes too much burden on a publisher, the court’s denigration of Meta for not being specific enough is disingenuous.

Facebook objected to specific details of the law’s disclosure requirements. The court responds: “gathering and providing the advertiser’s identity, intended audience, and the source of their funding, for example, is closely tailored to the State’s goal of helping a voter to evaluate why they received a certain ad.” Again, all of this could be required directly from advertisers, not putting the burden on Facebook to diligence the ads.

For example, Facebook complained about the statute’s 2-day turnaround and the 5-year retention requirement, to which the court replies 🤷‍♂️.

The McManus Case

In the 2019 McManus case, the Fourth Circuit issued a powerful ruling striking down a Maryland political advertising transparency law. The court distinguishes that ruling:

Meta differs significantly from a newspaper. For purposes of the service in question, Meta is comparable to a billboard where advertisers pay, not only to display their messages, but for Meta to decide where to place the billboard, and thus target a particular group of viewers. There is nothing in the record that demonstrates that Meta exercises editorial control over the content, as a newspaper does.

This is shockingly wrong. It completely disregards the Moody Supreme Court opinion saying that Facebook exercises editorial control over users’ content. Also, the opinion is internally inconsistent with itself, because the opinion made a big point about Facebook’s micro-targeting of ads, which is ALSO a manifestation of editorial control.

The court also makes a distinction between making the information available to the public at large (the Maryland statute) and providing to individuals upon request. As I explained here, this distinction is irrelevant.

The court summarizes all of its mistakes:

McManus was not presented with some of the differentiating facts that appear in the case before us, where the requirement (a) is one of only recordkeeping and disclosure or inspection of data Meta is already keeping, (b) does not apply to newspapers and their unique and complex constitutional rights, and (c) does not involve the government in editorial decisions, as there are none

Section 230

“The disclosure law does not create liability for the actual publication of ads or, crucially, the actual content of an advertisement. Instead, the disclosure law imposes liability squarely for Meta’s own conduct, namely whether it “maintain[ed] current books of account” that can be “open for public inspection.””

The court continues:

Even if we were to assume the disclosure law requires Meta to review ads, any more than it already does voluntarily, it “does not proscribe, mandate, or even discuss the content of the” ads beyond identifying the broad, high-level categories of “political advertising or electioneering communications during the election campaign.” [Cite to HomeAway] As the Fourth Circuit held, Section 230 “applies only when the claim depends on the content’s impropriety.” [Cite to Henderson] The disclosure law is not concerned with the impropriety of any actual specific content of any political ad. In that sense, the disclosure law is content-neutral and nonpartisan.

At most, the disclosure law merely tasks Meta with placing ads into “political” and “non-political” categories to facilitate future inspection or disclosure, which it has attempted to do for several years anyway through its Ad Library

The Henderson precedent emboldens this court to ignore the statute, which says nothing about the liability being based on third party content’s impropriety.

Otherwise, I think this discussion is similar to HomeAway, but that opinion itself was misguided because, like this law, the statute required the service to monitor third-party content and face liability for inaccurate classification decisions.

As a bonus, the court says the classification efforts are no big deal because the state maintains a list of declared candidates and initiatives, so all Facebook has to do is check the state’s database. As I’ve mentioned many years, requiring publishers to cross-check government databases as part of vetting third-party content is a 230 workaround that eviscerates the law.

The court summarizes its mistakes again:

The disclosure law does not treat Meta as a publisher of political ads, impose liability for the content of individual ads, or truly require Meta to monitor ads. Instead, it imposes liability for Meta’s own conduct; failure to identify, preserve, and disclose political ads and some of its underlying data

Implications

This ruling is a powerful retort to the regulators who disingenuously claim that because the Internet services already voluntarily provide some transparency, it’s no big deal to require them to provide transparency per statutory standards. Facebook provided its ad library with lots of the statutorily required access, but the gaps between the statutory requirements and Facebook’s voluntary efforts were enough to drive Facebook out of the market AND support $35M of damages. In other words, if the disclosure law is going to hold the publisher to exacting requirements, then any voluntary efforts are functionally irrelevant to measuring how much work it will take to comply with the statute.

I know transparency laws are popular, but it’s a novel and troubling policy development to extend them to publishers’ editorial activities. As I explain in this article, activist enforcers can use transparency laws to gather evidence that they will weaponize for censorial or improper purposes, such as the culture wars, and any alleged “errors” in the disclosures can give the weaponizers legal leverage over the publishers’ editorial decision-making. Because any enforcement of the transparency laws inherently leads to government entanglements with the publishers’ editorial functions, the laws should be condemned, not cheered.

Case Citation: State v. Meta Platforms, Inc., 560 P.3d 217 (Wash. Ct. App. Dec. 2, 2024)

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