Facebook parent company Meta ordered to pay more than $35 million to Washington

Meta was recently ordered to pay nearly $25 million in fines for violating Washington’s campaign finance disclosure rules. The company has been charged the maximum fine for violating the state’s Fair Campaign Practices Act, which was approved by voters in 1972. Then, the company received an additional fine of $10.5 million to cover attorney fees for the state of Washington. Bob Ferguson, the state’s attorney general, filed the lawsuit against the company. He joins us with details about the penalty.

Note: Meta declined to comment on the ongoing litigation.

Note: This transcript was computer generated and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Meta, Facebook’s parent company, was recently ordered to pay nearly $25 million in fines. That’s after a judge found that the company had intentionally violated Washington’s campaign ad disclosure rules 822 times. As a result of those violations, the judge has also ordered that Meta pay more than $10 million to cover the state’s attorney fees. Bob Ferguson is Washington’s attorney general. He filed the lawsuit against Meta and he joins us now to talk about what was at stake in this case and what the ruling could mean going forward. Bob Ferguson, welcome. Bob Ferguson: Well, thanks for having me, Dave. I really appreciate it.

Miller: Can you first explain just what Washington’s political ad disclosure law requires and prohibits?

Ferguson: Sure. So, the story really goes back about five decades. About 50 years ago in Washington state, a group of civic-minded Washingtonians got together and put an initiative on the ballot because they wanted greater transparency in elections: Who’s writing campaign checks? Who’s making the donations? Who’s paying for political ads that we see on TV? And that initiative was passed overwhelmingly by the voters in Washington state. So one part of that, and that’s the issue here, is that if your viewers, if they’re in Washington state, see a political ad on TV, for example, or they hear it on the radio, and they want to know information about who’s paying for that ad. What’s their contact information? How many times are they showing that ad. What do they pay for it? They can go to that TV station and ask that information, and the TV station or radio station or newspaper must provide that information to that Washingtonian. That’s required by the law. So the issue here is Facebook didn’t want to do that and that’s why they’re in violation of the law.

Miller: As you noted, this is now a 50-year-old law, meaning decades before the internet and social media. Has it been an update or has it changed since then?

Ferguson: Sure. So the law has, of course, evolved and been amended over the years. But the principle remains the same. What the law is focused on, is if you allow someone to advertise with your radio, your newspaper, whatever it might be, you have an obligation to provide certain information in a transparent way to the people of the state of Washington. So simply because Facebook has a different type of platform than a radio station or a small town newspaper or a TV station, that’s really of no moment. What matters is their obligation, because they’re accepting those ads, people are paying for those ads. They have to disclose that information to the public and they simply refuse to do that over and over again.

Miller: And just to be clear, this is different from what needs to be, say, written in small print or said in an ad itself, this is about information that has to be provided if requested, right?

Ferguson: That’s a great question and you’re exactly right. So just to be specific, let’s say that I see TV ads on the TV station, I can go to that television station, walk in the office and say, I’m looking for your information about your ads. And what that TV station will do, they literally pull out a binder sometimes and just hand it to you. It’s got all that information about those ads of who’s paying for it. So it’s not what you see on the TV screen or hear on the radio, it’s information the radio station or the TV station must provide to a Washingtonian, if they ask for it. That’s about the ad, who paid for it, how long it’s running, that type of thing.

Miller: How does this law compare to other state or federal laws?

Ferguson: Yeah, it’s relatively  – I don’t know if I want to use the word – unique. I’m not sure it’s one of a kind, but Washington is unusual in having a law like this.

In fact, Washington is well known for having kind of a gold standard of laws related to transparency in our elections, which is of course, especially important these days. We’ve seen the influence of dark money and outside money and interference from foreign countries in our elections. So I think the Washingtonians who 50 years ago conceived of this initiative and these laws were way ahead of their time. And it’s so important that these laws be enforced. So we had that transparency and people know who’s paying for these ads.

Miller: You initially sued Facebook over this issue four years ago in 2018. What did the company say at that point?

Ferguson: Yeah. So we did sue them initially. It was the first loss that we had against them. And what they essentially said was that, ‘hey, this law is too hard for us to comply with.’ So what happened in that initial lawsuit was we reached a settlement, Facebook paid several hundred thousand dollars, and they agreed moving forward to – I shouldn’t say ‘agree’  – what they said they were going to do is no longer accept political ads because they felt it was too complicated for them to follow it. They weren’t required to abandon that. They could have accepted ads that they wanted to, but they simply chose to no longer accept ads, because they felt it was too burdensome, too complicated to do what every TV station, radio station and newspaper in Washington state somehow manages to do.

Miller: Well, I want to get to that particular argument in just a bit, but to stick with what they actually did in the years that followed, what did you see from the company, which at that point we could still call Facebook pre-Meta?

Ferguson: Yeah, your listeners will be shocked to learn that Facebook Meta simply continued to accept those political ads, hundreds of them, despite having said they would no longer do it. Now look, they were entitled to accept those ads if they wanted to. But again, they had to provide that information to Washingtonians if they asked for it. And that’s exactly what happened. Washingtonians asked for that information. They saw the ads. And once again, Facebook simply did not provide that information.

Miller: So that brings us to the 2020 suit. What exactly did you bring in front of the judge?

Ferguson: So it was another lawsuit based on the same type of conduct. In other words, we could see that Facebook was running ads. We had complaints from Washingtonians, and saying, ‘hey, I’ve asked Facebook for information about these ads and Facebook isn’t giving it to me’. And so we brought a lawsuit after verifying those complaints were accurate. We brought a lawsuit against Facebook. And one thing that’s important for your listeners to know is Facebook didn’t simply respond by saying, ‘hey, this law shouldn’t apply to us because we’re so unique as a platform’. What they actually argued in court, Dave, what they’re arguing in court is that the law itself is unconstitutional. In other words, if they’re successful in that defense, not only would the law not apply to them, it wouldn’t apply to any TV station or radio station or anybody else. That is how arrogant, candidly, they are, that they are literally trying to strike down the very law that provides transparency in our elections here in Washington.

Miller: So let’s get to this argument. Obviously, the judge didn’t find it persuasive, but I want to hear your arguments for why it isn’t. And the phrase that Facebook or Meta used is that, if I understand correctly, that it’s unconstitutional – Washington’s law  – because it, quote, ‘unduly burdens political speech’. They also said that it’s virtually impossible to fully comply with. What’s your argument for why these arguments are wrong?

Ferguson: Yeah, in a nutshell, is first taking it in maybe reverse order, the idea that Facebook, one of the largest wealthiest corporations in the world, cannot follow a law that every small town newspaper in Washington state can follow, every TV station, every radio station can follow without complaint, is laughable. And frankly, I find it insulting that that’s their argument, that they simply can’t follow this pesky little law that we have in Washington state. Moreover, the judge didn’t buy it. The judge literally said in court, ‘hey Facebook, you can press a button and make this happen.’ That’s how the judge viewed that argument.

The other argument on the sort of the constitutionality of the First Amendment, it’s unduly burdensome. Look, I think it sort of speaks for itself. That that is the argument, we respect that argument, certainly was not persuasive to a judge. And in a nutshell, what we’re asking Facebook to do is provide basic information about campaigns, who purchase ads on their site. I think your listeners can appreciate the fact that that is a difficult argument for a company like Facebook to make to a judge here in Washington state when everybody else in the state is able to meet that burden.

Miller: When you say everybody else in the state, does that everybody include any other social media companies? Because so far you’ve been talking about how television stations, radio stations or newspapers have no problem complying. So what other social media companies are following this law?

Ferguson: Sure. So Google for example. You mentioned our lawsuit back I think in 2018 against Facebook. We also filed a lawsuit against Google at that same time for the same conduct. We reached a similar resolution with Google back then as we did with Facebook. Google also said, ‘hey, you know what? We’re not gonna accept these ads anymore. It’s not worth the trouble to do it’. And, and that’s the choice that they’ve made. So again, no one is required to accept a political ad. I want to be very clear about that. But if you accept that ad and you accept payment for that ad, Washington state law does require you to provide some basic minimal information to Washingtonians about who’s paying for it.

Miller: But the example you just provided, I don’t think it fully answers the question I’d asked. So is there a social media company that is running political ads that Washingtonians can see right now, and also providing all the information that this 1972 law requires?

Ferguson: I guess I’d have to check with my team, but I do know is Facebook and Google. We’ve had litigation against them. And so those are the two cases I know that existed where folks were using those platforms for political ads. That said, to your broader question, does this apply to those platforms? Absolutely. So if there’s a platform out there accepting those ads, they must provide the information.

Miller: When the judge said that all Facebook would have to do is push a button and they would be able to comply with this law, what do you think he was talking about?

Ferguson: I guess what my interpretation of that statement is that he was not buying Facebook’s argument that they simply couldn’t provide this information. That was too complicated. And frankly, the argument doesn’t pass the straight face test, right? That really can’t be that burdensome for Facebook to provide what is a basic amount of information about who’s purchasing ads. So at the judges … it was one of those things he said, where it was clear he was not close to accepting what Facebook was arguing on that point.

Miller: In addition to the fine, the judge wrote that quote ‘Meta is permanently enjoined from conditioning, limiting or otherwise restricting its compliance with the disclosure law.’ What does that mean, in plain terms?

Ferguson: In plain terms, it means that they have to start following the law, which means if they accept any of these ads, they must provide the information if a Washingtonian asked for it. Now, Facebook is filing an appeal on that issue and the overall fine. So this court proceeding is gonna make it all the way to the state Supreme Court, for example. But it simply says you’ve got to follow the law.

And one thing I should emphasize to your listeners, you know that the judge didn’t just rule that Facebook violated the law. He actually went a step further and said they did so intentionally, that they knew what they were doing, and they did it anyway. And that’s a key reason why the penalty is so high – $25 million plus $10 million per costs and fees – is because once the judge determines you’ve acted intentionally in violating our campaign finance laws, a judge can, at his or her discretion, triple the penalty that they set. And that’s precisely what happened here. The judge issued the maximum penalty of $10,000 for each of the 822 violations and then tripled it because he ruled that Facebook did this on purpose. Then he also tripled our costs and fees. So that’s how we get to this $35 million figure.

Miller: I should say, apropo of the news that Facebook is going to be appealing this, is we did reach out to them for a statement or to see if they want to talk on the show. And they said that we are unable to offer comment on the ongoing litigation. Eli Sanders, the former reporter for the Stranger, who has been reporting on this issue a lot, he pointed out that two years ago Washington’s public disclosure commission, which enforces the state’s campaign finance rules, they were going to settle this matter with Facebook for only a $75,000 fine and no admission of guilt from the company. And then the commissioners for the PDC rejected that settlement, and referred the matter to your office. Looking back now, now that you have this $25 million fine plus the $10 plus million dollars in attorney’s fees that the judge has ordered the company to pay, what goes through your mind when you think about the alternate reality, where the public disclosure commission had gone through with that $75,000 settlement?

Ferguson: Yeah, obviously I was deeply concerned about the staff recommendation back a few years ago recommended that tiny fraction of a penalty, if you can even call it that. And so I’m just thankful that the commissioners, who are the ones accountable to the public, realized that this case was far too important to resolve at that level, and sent it to my office so my team can do what they do best. And it’s important to point out that this penalty, it’s not just a big penalty, which it is, but it’s the largest campaign finance penalty ever issued anywhere in the United States, federal state or local, and by a margin. So it’s a big penalty and one that we hope gets the attention of Facebook. And brings them into compliance.

Miller: Is your assumption that Facebook is going to simply stop running political ads like they said they would do four years ago, or keep running them and provide the information that Washingtonians ask?

Ferguson: That is correct, that they have a clear choice, right? Either stop accepting the ads, all of them, or if you want to accept them – which is perfectly within their right to do – do what everybody else does here in Washington state. And I mean this quite literally every small town paper, every radio station, every TV station, they all do it. And they’ve been doing it for decades without complaint. And the idea that Facebook is going to bring out their high-priced lawyers from back east, and fly into a courtroom in downtown Seattle, and say that this law is unconstitutional, that the people put in place. I mean, honestly, it’s the kind of thing that just drives people crazy about big corporations that candidly think they can run roughshod over the will of the people in a particular state. And that’s what’s going on here.

Miller: Bob Ferguson, thanks very much for joining us.

Ferguson: Thanks so much, Dave.

Miller: Bob Ferguson is Washington’s attorney general. He joined us to talk about the successful suit the state of Washington brought against Meta – that’s Facebook’s parent company – for their violations of the state’s campaign ad disclosure rules.

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