Washington, DC  — Washington’s public file law forces newspapers, mailshops, online platforms, and other ad publishers to maintain exhaustive records of political ads available for public inspection. It does so even though candidates and PACs must already publicly report this same information. Faced with the immense burden caused by these rules, platforms opt to ban such ads rather than continue to comply with the onerous regulations, severely hindering political speech.

That’s why the Institute for Free Speech filed a memorandum of amicus curiae yesterday in State of Washington v. Meta Platforms, Inc., urging the Washington Supreme Court to review and invalidate the state’s public file law.

The Institute argues that Washington’s Fair Campaign Practices Act violates the First Amendment by imposing redundant public file requirements on platforms or firms that distribute political advertisements, causing “crushing penalties on intermediaries that fail to satisfy its Byzantine obligations.”

“Platforms have responded by shuttering their forums to political ads, disproportionately burdening outsider campaigns that lose access to a medium the Supreme Court has called ‘the modern public square,’” the memorandum explains.

The Institute highlights how the law has already produced harmful real-world effects. “The record here confirms this outcome. After amendment of the Fair Campaign Practices Act commercial advertiser regulation in 2018, major platforms including Google, Facebook, and Yahoo stopped accepting political ads in Washington,” it notes.

These impacts are particularly severe for candidates without access to traditional media channels. “Digital advertising offers an essential, cost-effective way for grassroots movements and candidates with limited resources to reach targeted audiences,” the memorandum states. “Regulation pressuring these channels to close their doors thus disproportionately harms smaller campaigns, grassroots organizations, and low-wealth candidates lacking traditional media access.”

The Institute challenges the law’s constitutionality using the framework of “collateral censorship,” arguing that “censorship of a speaker by punishing the messenger they rely on to carry their speech” creates a dangerous situation where intermediaries respond by “deleting speech or eliminating fora entirely.”

The memorandum also points out that Washington already has disclosure requirements for candidates, parties, and PACs, making the platform disclosure rules redundant and unnecessarily burdensome. “Washington’s duplicative disclosure regime imposes far-reaching nuclear burdens on speech intermediaries, while doing nothing more to advance ‘the prevention of quid pro quo corruption or its appearance,’” it contends.

Citing the appropriate standard of review from Americans for Prosperity Foundation v. Bonta, the memorandum concludes that Washington’s law is clearly unconstitutional. “Because Washington has alternatives that would promote transparency without driving political speech off major platforms, the Act fails exacting scrutiny.”

To read the Institute’s full memorandum of amicus curiae in State of Washington v. Meta Platforms, Inc., click here.