V. S UPERIOR COURT GRANTS SUMMARY JUDGMENT IN FAVOR OF STATE
Both parties moved for summary judgment. In October 2022, the trial court granted the State's motion for summary judgment and denied Meta's motion for summary judgment. CP at 5571.
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The trial court determined that Meta violated the FCPA 822 times. CP at 5575, 5784. It counted 411 advertisements responsive to Sanders' and Trask's requests for which Meta failed to provide complete information. CP at 5575. It then doubled that number to reflect the fact that Wurtz's requests also covered those same ads (although Wurtz's requests actually covered far more than 411 ads). CP at 5574-75. The trial court entered judgment in favor of the State. CP at 5783. It imposed the maximum statutory penalty of $10,000 per violation on each violation, then trebled that total under former RCW 42.17A.780 (2018) because it determined the violations were intentional, for a total fine of $24,660,000.00. CP at 5578, 5784-85. The trial court also awarded $3.5 million in attorney fees and costs, which it trebled to $10,522,159.59 pursuant to former RCW 42.17A.780. CP at 5812. The total fine and costs assessed against Meta amount to $35,182,159.59—the highest campaign finance violation penalty in United States history.12
On appeal, Meta argued that the FCPA and its implementing regulations violate the First Amendment as applied to Meta; that the superior court erred in interpreting the statute to permit the imposition of a penalty for each advertisement included in the requests, rather than a penalty for each request; and that the fine was
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so excessive that it violated the Eighth Amendment. The Court of Appeals rejected Meta's arguments and affirmed. State v. Meta Platforms, Inc., 33 Wn. App. 2d 138,
560 P.3d 217 (2024). We accepted review and we must address the same questions.
4 Wn.3d 1020 (2025).
A NALYSIS
I. GENUINE ISSUES OF MATERIAL FACT PRECLUDE SUMMARY JUDGMENT ON
THE FIRST AMENDMENT ISSUE, REGARDLESS OF WHETHER STRICT OR
EXACTING SCRUTINY APPLIES
Meta argues that the disclosure requirements imposed by the FCPA and its implementing regulations (together, the "disclosure law") violate its First Amendment rights. It argues that the court must apply strict scrutiny to its First Amendment claim because the disclosure law is a content-based regulation that targets political speech. Meta also argues that the existence of genuine issues of material fact related to the extent of the law's burden on its First Amendment rights made summary judgment inappropriate.
The lead opinion disagrees. It adopts exacting scrutiny as the correct standard to evaluate Meta's First Amendment claim.
Meta is probably correct that strict scrutiny applies to its First Amendment claim, as discussed below. But even if exacting scrutiny applies, the lead opinion
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State v. Meta Platforms, Inc., No. 103748-1 (Gordon McCloud, J., dissenting) still errs in holding that the costs and burdens that the FCPA imposes on Meta are insignificant and, hence, that they satisfy that test's "narrow tailoring"
requirement. Lead opinion at 19-20. Instead, the record shows that Meta establishes genuine issues of material fact concerning the burden that the law imposes on Meta's First Amendment rights and, hence, on whether that law is "narrowly tailored" enough to satisfy the First Amendment. I would therefore reverse the trial court's decision to grant summary judgment to the State.
A. The lead opinion does not meaningfully consider the distinctions between disclosure laws that target political speakers and disclosure laws (like the FCPA) that target neutral third-party platforms (like Meta); the latter place far more burdens on speech, are more suspect, and hence must be subject to strict scrutiny (the more speech-protective standard)
Meta argues that the disclosure law is subject to strict scrutiny because it is a content-based regulation of speech: it applies only to political speech. Reed v. Town of Gilbert, 576 U.S. 155, 165, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015) ("A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech." (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993))). To
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survive strict scrutiny, the State must show that the law "'furthers a compelling interest and is narrowly tailored to achieve that interest.'" Id. at 171 (internal quotation marks omitted) (quoting Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 734, 131 S. Ct. 2806, 180 L. Ed. 2d 664 (2011)). Under strict scrutiny, a law is "narrowly tailored" when it is the least restrictive alternative for achieving the State's goal. McCullen v. Coakley, 573 U.S. 464, 478, 134 S. Ct. 2518,
189 L. Ed. 2d 502 (2014). The lead opinion disagrees that strict scrutiny is appropriate. It holds that exacting scrutiny—a less speech-protective standard—applies because the law is a campaign-related disclosure law that does not burden speech that much. To survive exacting scrutiny, the State must show that the law (1) bears a substantial relation to a sufficiently important government interest and (2) is narrowly tailored to accomplish that interest. Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 611,
141 S. Ct. 2373, 210 L. Ed. 2d 716 (2021). Under exacting scrutiny, the narrow tailoring requirement requires a "'reasonable'" fit between the State's interest and the means used to accomplish that interest, though it need not be the "'least restrictive means'" of achieving the state's important interest. Id. at 609-10 (internal quotation marks omitted) (quoting McCutcheon v. Fed. Election Comm'n, 572 U.S. 185, 218, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014) (plurality opinion)). This means-
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end fit requirement means that a state "is not free to enforce any disclosure regime that furthers its interests." Id. at 613.
Thus, the costs and burdens of compliance with a law are highly relevant to determining whether the law is narrowly tailored to achieve an important government interest. Smith v. Helzer, 95 F.4th 1207, 1217 (9th Cir.) (considering the financial and time-based burdens of a disclosure law on campaign contributors as part of the exacting scrutiny narrow tailoring requirement), cert. denied sub nom., Smith v. Stillie, 145 S. Ct. 567 (2024). And when the regulated entity is a business, the way the costs and burdens of the law affect the entity's business decisions are naturally relevant to considering the law's means-end fit.
To be sure, both the United States Supreme Court and this court have applied the exacting scrutiny standard to other campaign finance disclosure laws. E.g., Buckley v. Valeo, 424 U.S. 1, 63, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (campaign finance law required political committees and candidates to disclose information); Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 366, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) (campaign finance law required political action committees to disclose information); State v. Grocery Mfrs. Ass'n, 198 Wn.2d 888, 893, 502 P.3d 806 (2022) (GMA II) (FCPA requires candidates and political committees to disclose campaign finance information). As the lead opinion recognizes, the Supreme Court
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has explained that exacting scrutiny is the appropriate standard for evaluating the constitutionality of campaign finance disclosure laws because such laws "'do not prevent anyone from speaking,'" as opposed to laws that place a ceiling on political speech (like campaign contribution limits), which do limit speech and hence which receive strict scrutiny. Citizens United, 558 U.S. at 366 (quoting McConnell v. Fed. Election Comm'n, 540 U.S. 93, 201, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003), overruled in part on other grounds by Citizens United, 558 U.S. 310). But none of those decisions analyzed campaign finance-disclosure laws that targeted third-party platforms that host political ads, like Meta does (as opposed to targeting the candidate or the campaign). And, as the lead opinion acknowledges, neither the United States Supreme Court nor this court has decided what level of scrutiny applies to this situation. Lead opinion at 14.
The lead opinion adopts the exacting scrutiny standard for this new situation without really grappling with the distinctive burdens the FCPA places on the targeted platform or the speech-chilling effects it has on the platform and its potential users. But those considerations are important—under controlling precedent, the extent of the law's burden on free speech basically determines the level of scrutiny the law must receive. Buckley, 424 U.S. at 67-68 (considering speech-chilling effect of campaign finance disclosure law on campaign contributors); Ams. For Prosperity,
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594 U.S. at 610 (considering extent to which law requiring charities to report top donors to state attorney general had potential speech-chilling effect on donors); see also Collier v. City of Tacoma, 121 Wn.2d 737, 752, 854 P.2d 1046 (1993) (in analyzing whether yard sign regulation violated state constitutional free speech protections, court considered that the regulation tended to benefit the well-known incumbent at the expense of "[t]he underfunded challenger . . . who relies on the inexpensive yard sign to get his message before the public"). Given the critical importance of the extent of the law's burden on free speech to determining the applicable standard of scrutiny, we must pay careful attention to the fact that the FCPA and its implementing regulation are not ordinary campaign finance disclosure laws. As the Fourth Circuit Court of Appeals explained in Washington Post v. McManus, "While ordinary campaign finance disclosure requirements do not 'necessarily reduce[] the quantity of expression,' the same cannot be said for platform-based laws." 944 F.3d 506, 517 (4th Cir. 2019) (alteration in original) (citation omitted) (quoting Buckley, 424 U.S. at 19). Washington Post dealt with a Maryland campaign finance disclosure law that, like the instant law, applied to third-party platforms.13The Fourth Circuit declined
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to decide whether strict or exacting scrutiny applied because it held that the law failed even exacting scrutiny. The court began by considering the distinct consequences of the platform-based law on political speech. It explained that
"[b]ecause political actors and neutral third-party platforms operate under markedly different incentives, the consequences of a disclosure law vary starkly depending on where its burdens are placed." Id. at 517. The "organic desire" of political groups to succeed at the ballot box "generally offsets, at least in part, whatever burdens are posed by disclosure obligations." Id. at 516. By contrast, "platform-based campaign finance regulations like the one here make it financially irrational, generally speaking, for platforms to carry political speech when other, more profitable options are available." Id. Thus, "when the onus is placed on platforms, we hazard giving government the ability to accomplish indirectly via market manipulation what it cannot do through direct regulation—control the available channels for political discussion." Id. at 517 (citing Reed, 576 U.S. at 168). The court noted that the risk advertisements, not to social media platforms like Meta. But Washington Post's discussion of the distinct burdens imposed by a platform-based disclosure law was not limited to that context. See Wash. Post, 944 F.3d at 517 (stating that the law's First Amendment problems discussed above "are compounded" by the application of the law to newspapers); cf. lead opinion at 23 (mischaracterizing the entirety of Washington Post as applying only to newspapers).
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of a chilling effect on political speech had already begun, as Google had announced it would stop hosting political ads in the state. Id. at 516-17. In short, the Washington Post court took seriously the fact that the platform- based disclosure law had a chilling effect on political speech. And it took this into account when considering whether the law was narrowly tailored under the exacting scrutiny analysis. That approach aligns with United States Supreme Court precedent. After all, exacting scrutiny requires a reasonable fit between the means and ends of a law, such that a state "is not free to enforce any disclosure regime that furthers its interests" at any cost. Ams. For Prosperity, 594 U.S. at 613. A court applying exacting scrutiny must carefully consider the extent of those costs in determining whether a law is narrowly tailored.
The lead opinion takes the opposite approach. It concludes that Meta's decision to ban Washington political ads is irrelevant—that it "does not impact this court's exacting scrutiny analysis." Lead opinion at 24; see also id. at 25, 25 n.11. It does not explain why such an obvious burden on political speech is irrelevant. The lead opinion also fails to acknowledge that the means-ends analysis does not end with the determination that it is literally possible for Meta to comply with the law, regardless of the burden on its finances or business model. Id. at 25-26 (framing the question as whether Meta presented a genuine issue of material fact
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regarding "its inability to comply"). Rather, the question is whether there is a reasonable fit between the State's goal of election transparency and the means the State uses to attain that goal. If the result of the law is that a platform shuts down opportunities for political speech that it used to provide, there is a strong argument that the law is not narrowly tailored—even if compliance with the law is literally possible. See Washington Post, 944 F.3d at 517 ("Government policies that foreclose channels for political speech or simply crowd out too much political speech . . . pose especially serious constitutional dangers." (citing Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 167-68, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002))). After all, "[t]he First Amendment guards against 'any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.'" Id. (quoting Grosjean v. Am. Press Co., 297 U.S. 233, 249-50, 56 S. Ct. 444, 80 L. Ed. 660 (1936)).
In sum, the lead opinion fails to acknowledge that "[d]isclosure obligations applied to neutral-third party platforms are . . . , from a First Amendment perspective, different in kind from conventional campaign finance regulations." Id. at 516. It is important to consider these distinctions when analyzing whether a platform-targeted disclosure law is narrowly tailored.
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But here as in Washington Post, it is unnecessary for us to decide which level of scrutiny applies. That's because even under the less-demanding exacting scrutiny standard, Meta identifies material issues of fact that preclude summary judgment on the issue of whether the law is narrowly tailored.
B. Even if exacting scrutiny applies, Meta has set forth facts sufficient to establish a genuine issue of material fact about whether the disclosure law is unduly burdensome
As discussed above, the extent of the burden that the law places on Meta is highly relevant to determining whether that law is narrowly tailored to achieve the State's goal of an informed electorate.
In this case, Meta argues that the FCPA fails the narrow tailoring requirement because it is unduly burdensome for such a third-party platform to comply. In fact, the law imposes such serious financial and technical burdens, and such steep potential penalties for violations, that Meta has concluded it is financially irrational to continue hosting Washington political ads on its platforms. The result is that a major platform for political speech is no longer accessible. Meta provided evidence that this particularly affects "smaller campaigns that lack the resources to reach voters through more expensive and traditional means" like television or radio. CP at 399 (Def.'s Mot. for Summ. J.) (quoting declarations from Washington politicians and campaign managers).
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22
State v. Meta Platforms, Inc., No. 103748-1 (Gordon McCloud, J., dissenting) The State presented expert evidence that it would be inexpensive and technically uncomplicated for Meta to comply with the law. Meta presented conflicting expert evidence that it would be expensive and technically complex to comply with the law.
The lead opinion concludes that Meta's evidence amounts to "'"speculative"
generalities which lack the "specificity" to create a genuine issue of material fact.'"
Lead opinion at 26 (quoting Meta, 33 Wn. App. 2d at 173-74). The lead opinion primarily reaches this conclusion because it says that Meta failed to "provide specific details about what compliance with Washington's FCPA would actually cost." Id. at 26-27.
The record does not support this characterization. In fact, Meta has provided detailed and specific explanations about why compliance is burdensome. Meta presented specific evidence to substantiate its arguments that, among other things,
(1) identifying which ads are covered by the law is technically and financially burdensome and (2) reporting the data to the requester, particularly within 48 hours, is unduly burdensome. It's true that Meta has not quantified its burden with a specific dollar figure. But the lead opinion points to no authority imposing such a requirement.
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i. Meta provided nonspeculative facts to rebut the State's argument that it can cheaply and easily identify Washington political ads The State argues that determining whether an ad is covered by the disclosure law is not an unnecessary burden because "Meta already knows how to and does identify political ads based on a definition." Resp't State of Wash.'s Answer to Pet. for Rev. at 16 n.3.
Meta has set forth nonspeculative facts that show that there is a genuine dispute about how technically difficult and expensive it would be to comply with the law. That difficulty begins with identifying which advertisements are covered by the law. Meta's expert, Dr. Steven Weber, provided a detailed explanation of why and how it is difficult for Meta to identify which ads are covered by the law. CP at 7869-
80.
First, the law does not require purchasers of an ad to flag whether the ad is a Washington political ad when placing it on the platform. CP at 7859. Even if it did, Meta would still need to implement a process to accurately determine which ads are covered by the law to ensure compliance in cases where a purchaser fails to correctly indicate the ad's status. To accurately determine whether an ad is covered, Meta would need to know the full set of candidates and ballot propositions at any given time in Washington—a challenging task. CP at 7872. Nearly 7,000 candidates filed
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for office at the state, judicial, and county level in 2020, not including candidates who subsequently withdrew. Id. There were 47 statewide ballot initiatives proposed, and even more at the county and subcounty levels. CP at 7872-73. No currently existing database compiles all this information. CP at 7869. Even if Meta could create a real-time, updated database of all Washington candidates and ballot propositions, it would still face challenges in identifying Washington political ads because of the breadth of the statutory definition of
"political advertisement." CP at 7873. An advertisement constitutes "political advertising" if it "directly or indirectly" appeals for "financial or other support" in a Washington election. Former RCW 42.17A.005(40) (2025) (emphasis added). The FCPA also applies to "electioneering communications," which includes ads that
"identif[y] the candidate without using the candidate's name." Former RCW 42.17A.005(21)(a)(i). These broad definitions mean that it can be challenging even for the PDC to identify whether an ad is a Washington political ad: "For example, the Executive Director of the PDC cited an advertisement that merely asked voters to call their political representatives on a particular issue, without suggesting a stance on that issue, as an example of a 'gray area' under the law's definition." CP at 7874 (citing deposition of Peter Lavallee (PDC executive director) (May 7, 2021)).
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Meta already uses machine learning as part of its general ad review system, including using it to identify ads that relate to "'social issues, elections or politics.'"
CP at 7878. However, Dr. Weber explained that Meta's current "machine learning system cannot serve as the exclusive solution to classify whether an advertisement falls under the Washington Disclosure Law specifically." Id. Creating an algorithm to classify advertisements would "require substantial human input to build, and the computer's prediction will not necessarily be accurate, including in situations where humans themselves struggle to categorize differences or the categories are inherently highly similar." CP at 7876. "[A] significant amount of coding work and system development is required to write and refine algorithms that are efficient and accurate." Id.
Machine learning models must be "trained" with large batches of training data to help the system "learn" to properly classify information. Id. Training data consist of manually labeled examples—on the scale of thousands or even millions of manually labeled images. CP at 7876-77. Dr. Weber explains the complexity of training a machine learning model to specifically recognize Washington political ads given the broad statutory definition of a political ad combined with the limited data set available: "The need to identify Washington elections, candidates, and ballot propositions in particular means that very specific examples would have to be used
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in the training data in order to teach the machine to distinguish Washington Political Ads from other types of political advertising. But a candidate or ballot proposition in the State of Washington may only have a handful of ads, making it unlikely for there to be a sufficiently large corpus of training data." CP at 7879. Further, it is difficult even for humans to precisely identify which ads, for example, "'indirectly'"
appeal for "'financial or other support'" in a Washington election. CP at 7873 (quoting former RCW 42.17A.005(40)). "[E]ven attempting to create this set [of training data] would take a large amount of time (for example, to have multiple humans review and debate the instances that are challenging to classify) with no guarantee of it being successful or stable." CP at 7879.
"Meta can leverage the large number of advertisements that run on Facebook to create relatively stable training data that can then be used to develop machine learning classification algorithms to identify ads about 'social issues, elections or politics.'" CP at 7880. "This process could not easily be replicated for the identification of Washington Political Ads specifically" because "the difficulties with creating an initial, stable set of data for classifying Washington Political Ads is augmented by the necessity of having the machine constantly learn new information while 'forgetting' information that quickly becomes irrelevant as (for example) candidates drop out of local and statewide races." Id. Thus, Dr. Weber opined that
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"using machine learning to identify Washington Political Ads specifically would be far more challenging to implement than Meta's current process to use machine learning to identify ads about 'social issues, elections or politics.'" Id. In addition to Dr. Weber's declaration, Meta presented additional evidence to rebut the State's assertion that it could easily alter its Ad Library to display the requested information. Deposition testimony from Ani Vanesyan explained that the financial and technical burden of altering Meta's Ad Library to display the required information for Washington political ads would be "substantial and significant" and
"nontrivial." CP at 8370. Moreover, altering the Ad Library "could also challenge the stability of the tool, because the more complex the code becomes on the back end, the more unstable the tool is." Id.
At the summary judgment stage, we view the evidence in the light most favorable to the nonmoving party. Here, nonmoving party Meta has provided evidence that it cannot identify covered ads without significant and ongoing expenditures of time and money. It has provided evidence that using machine learning—alone or with other review systems—to identify Washington political ads is not feasible. These facts—which conflict with the State's assertions—are highly relevant and material to whether the burden the law places on Meta's First Amendment rights and the chilling effect the law has on political speech are justified.
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ii. Meta has set forth nonspeculative facts that responding to requests within 48 hours is unduly burdensome
Meta has also provided sufficiently specific evidence to support its argument that responding to disclosure requests within 48 hours—no matter how many ads the request covers, and no matter who requests the ad and for what purpose—is not narrowly tailored and is unduly burdensome.
Dr. Weber explained that producing responsive data upon request under the timelines imposed by the FCPA "requires the use of considerable resources" within Meta and through external contractors. CP at 7881. Determining "the universe of ads for which data is being requested" is difficult because requesters are not required to specifically identify the ads for which they seek information. CP at 7882-83. Meta employees and outside contractors must then formulate a query to retrieve the requested ads and review the retrieved ads to ensure that they really are Washington political ads and that they really do contain the relevant information; this is "a time- intensive process, especially because the results of the data query can sometimes constitute hundreds of pages for a single advertiser." CP at 7884. Next, contractors review the compiled data "to identify sensitive data or any information outside the scope of the Washington Disclosure Law, and then redact[] such data." Id. The legal team engages in a final review of the data and sends it to the requester. CP at 7885.
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Meta has presented sufficiently specific evidence that doing all of this within the FCPA's timeline (48 hours under the current version of the regulation) is burdensome, in conflict with the State's claim that Meta could easily and inexpensively comply with the law.
The lead opinion does not address this argument, concluding instead that Meta loses because it did not "quantify the resources needed to comply" with the law. Lead opinion at 26-27. Even though Meta has not assigned specific dollar amounts to the burden it faces in complying with the disclosure law, it has described those burdens with sufficient detail to survive summary judgment. The disputed evidence regarding the burden on Meta should be resolved by a fact finder.
II. T HE LEAD OPINION'S "PER AD, PER REQUEST" APPROACH TO
CALCULATING THE NUMBER OF FCPA VIOLATIONS CORRECTLY
RECOGNIZES THAT THE LAW REQUIRES PLATFORMS TO COLLECT,
MAINTAIN, AND DISCLOSE INFORMATION ABOUT INDIVIDUAL ADS AND
DISCLOSE THAT INFORMATION IN RESPONSE TO SPECIFIC REQUESTS
The next issue is one of statutory interpretation: what counts as a "violation"
under former RCW 42.17A.750(1)(c) (2019)? We review questions of statutory interpretation de novo, with a "fundamental objective" to ascertain and carry out the legislature's intent. Ass'n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849 (2015); Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). We "discern[] legislative intent
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from the plain language enacted by the legislature, considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole." Ass'n of Wash. Spirits & Wine Distribs., 182 Wn.2d at 350 (citing Campbell & Gwinn, 146 Wn.2d at 9-10). We may turn to other tools of statutory interpretation if the statute's plain meaning is ambiguous. Five Corners Fam. Farmers v. State,
173 Wn.2d 296, 306, 268 P.3d 892 (2011). The penalty provision of the disclosure law provides that a "person who violates any of the provisions of this chapter may be subject to a civil penalty of not more than ten thousand dollars for each violation." Former RCW 42.17A.750(1)(c) (2019). The superior court may treble damages if "the violation is found to have been intentional." Former RCW 42.17A.780.
That's a significant potential penalty per violation. But the law does not define what constitutes a "violation." Instead, it specifies what does not constitute a violation by excluding "a violation of this chapter that is not a remediable violation, minor violation, or an error classified by the [PDC] as appropriate to address by a technical correction." Former RCW 42.17A.005(54).
The lead opinion, concurrence/dissent, and Meta each present different interpretations of the statutory term "violation." While I think this is a close question,
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I agree with the lead opinion that the most reasonable interpretation of the statute is that a violation of the disclosure law occurs each time a platform fails to make required information about an advertisement available to a requester. That is the interpretation that best comports with the text and the legislature's stated intent to maximize disclosure and incentivize compliance.
The language of the law obligates Meta to collect, maintain, and disclose information about each covered advertisement. Former RCW 42.17A.345(1) (advertiser must maintain current books of account and related materials and make them available for public inspection); WAC 390-18-050 (contents of books of account include information about each specific advertisement). Thus, it makes sense to conclude that Meta violates the law each time it fails to disclose information about any particular ad in response to a request.
The lead opinion also persuasively reasons that its interpretation best supports the legislature's repeatedly stated intent to ensure full disclosure of campaign expenditures and its mandate to construe the FCPA "liberally" to promote that goal. Former RCW 42.17A.001(1), (11) (2019). The lead opinion also points out that a statement of intent related to former RCW 42.17A.005 states that the legislature intends "to promote greater transparency for the public by enhancing penalties for violations." L AWS OF 2011, ch. 145, §1. If the harm is deprivation of information
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about an ad, that harm occurs each time a platform fails to disclose the information in response to a request; allowing the platform to be penalized each time this harm occurs seems to comport with legislative intent.
Meta argues that the disclosure law requires it to make information available
"promptly upon request," former WAC 390-18-050(3), so that each time it fails to promptly comply with a bundled request counts as a single violation. Thus, Meta argues that in this case, the court should have counted a maximum of 12 violations, corresponding to each separate request made by the three individuals. Meta's interpretation can be described as counting the violations "per request."
The concurrence/dissent focuses on the law's requirement that platforms maintain specific information about each advertisement, prior to and independent of any later request for that information. It concludes that this means that the legislature made a platform's failure to disclose the required information "result[] in one violation for each advertisement, regardless of the number of requests for that same information." Concurrence/dissent at 15. The concurrence/dissent concludes that the disclosure law does not impose penalties "per request." Id.
In my view, both Meta and the concurrence/dissent fail to acknowledge all parts of the disclosure law. Meta's approach ignores the law's requirement that platforms maintain and disclose information about each advertisement. The
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concurrence/dissent ignores the law's requirement that the platform must make the information available each time it is requested.
The correct interpretation must acknowledge that the law requires platforms to both maintain specific information and to make that information available for public inspection. Further, as the lead opinion points out, the legislature repeatedly emphasized its intent to maximize disclosure. Taken together, the most reasonable interpretation of the law is that the harm (depriving voters of required campaign finance information) occurs each time a platform fails to disclose the information upon request.14
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Thus, I agree that the lead opinion's "per ad, per request" interpretation is probably the most reasonable way to interpret the penalty statute.15Here, even if the superior court correctly totaled the number of violations at 822, that still leaves open the question of whether the penalty imposed in this case violates the Eighth Amendment's prohibition on excessive fines. As I discuss next, under controlling Supreme Court precedent, the penalty imposed in this case—the highest one ever for a campaign disclosure violation—clearly violates the Eighth Amendment's bar on excessive fines.
III. T HE TRIAL COURT'S IMPOSITION OF A $35 MILLION PENALTY ON META FOR PARTIAL REPORTING VIOLATIONS VIOLATES THE EIGHTH AMENDMENT'S
PROHIBITION ON EXCESSIVE FINES
The Eighth Amendment to the United States Constitution prohibits excessive fines. A fine is "excessive" if it is "grossly disproportional to the gravity of a defendant's offense." United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998). To determine gross disproportionality, we consider the superior court's approach serves legislative intent instead of being arbitrary or underinclusive. Lead opinion at 28 n.15.
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the factors set forth in the seminal United States Supreme Court case on excessive fines, Bajakajian: "'(1) the nature and extent of the [violation], (2) whether the violation was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused.'" State v. Grocery Mfrs. Ass'n (GMA I), 195 Wn.2d 442, 476, 461 P.3d 334 (2020) (quoting United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1122 (9th Cir. 2004) (citing Bajakajian, 524 U.S. at 337-40)); see also City of Seattle v. Long, 198 Wn.2d 136, 163, 493 P.3d 94 (2021) (courts apply the Bajakajian analysis to punitive civil fines). Meta argues that the $35 million judgment here—the largest in the history of the state by a wide margin—is excessive and disproportional to the gravity of its disclosure violations under the Bajakajian factors. The lead opinion disagrees. The lead opinion, however, fails to properly consider the Bajakajian factors. First, the lead opinion provides little analysis of the "nature and extent" of Meta's violations and characterizes Meta's misconduct at far too high a level of abstraction. Second, the lead opinion treats the fact that Meta's violations were unrelated to other legal violations as irrelevant—but instead, that factor actually weighs in favor of finding the penalty excessive. Third, the lead opinion also states that Bajakajian's third factor, the other penalties that may be imposed for the violation, is irrelevant— but, instead, that factor also weighs in favor of finding the penalty excessive. Finally,
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the lead opinion fails to consider the extent of the harm caused by Meta's violations, again viewing the harm at an erroneously extreme level of abstraction. Under a proper analysis of the Bajakajian factors, the $35 million penalty is grossly disproportionate to Meta's conduct: failing to disclose some of the required information about political advertisements while disclosing much of the rest of the required information in its well-organized, conspicuously posted Ad Library. But before addressing each Bajakajian factor, I begin by reviewing some key cases on excessive fines.
A. A fine is excessive under the Eighth Amendment if it is grossly disproportionate to the gravity of the offense
In Bajakajian, Hosep Bajakajian attempted to leave the country without reporting that he was transporting more than $10,000 in currency, as required by federal law. 524 U.S. at 324-25. Because he willfully violated that reporting requirement, the entire sum he was carrying—over $350,000—was subject to forfeiture. Id. at 325 (citing 18 U.S.C. § 982(a)(1)). The United States Supreme Court ruled that full forfeiture of Bajakajian's money would be grossly disproportionate to the gravity of the willful reporting offense he committed.
The Court considered several facts in reaching that conclusion. First, Bajakajian's "crime was solely a reporting offense." Id. at 337. Second, the violation
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State v. Meta Platforms, Inc., No. 103748-1 (Gordon McCloud, J., dissenting) was "unrelated to any other illegal activities"; Bajakajian obtained the money legally and planned to use it to pay a lawful debt. Id. at 337-38.
Next, the Court considered Bajakajian's exposure under the federal sentencing guidelines: he could receive a maximum criminal sentence of six months, and a maximum fine of $5,000. Id. at 338. The Court compared this relatively low fine and low sentence to the maximum penalties authorized under the statute: "a maximum fine of $250,000 plus five years' imprisonment for willfully violating the statutory reporting requirement." Id. at 339 n.14. The Court concluded that the penalties Bajakajian actually faced, compared to the potential penalties for the worst offenders, "confirm a minimal level of culpability." Id. at 338-39. Finally, the Court considered the harm Bajakajian caused. It rejected the government's contention that there was a correlation between the amount forfeited (over $350,000) and the harm the government would have suffered had the crime gone undetected. The Court instead focused on the actual harm caused by the defendant's violation: he deprived the government of the information that $357,144 had left the country, but he did not deprive the government of the money itself. Id. at 339. Requiring forfeiture of that amount
"bears no articulable correlation to any injury suffered." Id. at 339-40.
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Bajakajian did not establish a rigid test for determining whether a fine is excessive under the Eighth Amendment. Long, 198 Wn.2d at 167 (citing United States v. Mackby, 339 F.3d 1013, 1016 (9th Cir. 2003)). This court adopted the Ninth Circuit's approach, which distilled the factors discussed in Bajakajian into the following nonexclusive list: "'"(1) the nature and extent of the crime, (2) whether the violation was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused."'" Id. at 167 (quoting GMA I, 195 Wn.2d 476 (quoting $100,348.00 in U.S. Currency, 354 F.3d at 1122)).
We applied that analysis in GMA II. 198 Wn.2d 888. GMA, a trade group, created a segregated account to hold and disburse funds from its members to oppose an initiative that required GMO labels on packaged food. GMA ultimately collected over $14 million for this purpose. Id. at 894. GMA did not register as a political action committee or make any reports to the PDC until after the State filed a lawsuit against it for FCPA violations.
After a bench trial, the court found that GMA had intentionally violated Washington's campaign finance laws. Id. at 895. It found that GMA intended "'to shield the contributions made from GMA members from public scrutiny'" and to bypass the FCPA's requirement to publicly disclose GMA members' contributions
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State v. Meta Platforms, Inc., No. 103748-1 (Gordon McCloud, J., dissenting) on state campaign finance disclosure reports. Id. (quoting court papers). The trial court imposed a base penalty of $6 million under former RCW 42.17A.750(1)(f) (2013), and, since the violation was intentional, trebled the damages under former RCW 42.17A.780. That resulted in a penalty of $18 million, at the time the largest campaign finance violation penalty in state history. GMA argued that the penalty was unconstitutionally excessive. This court affirmed the penalty after applying the Bajakajian factors. Id. at 899. As to the first factor, we explained that the nature and extent of GMA's violation was "'intentionally concealing the true source of over $10 million in campaign spending' and directly violating the core principles of the FCPA." Id. (quoting court papers). While GMA's violation was a reporting offense, it differed significantly from the individual reporting offense in Bajakajian. We found that GMA's "decision to conceal the identities of its campaign contributors struck at the core of open and transparent elections" because "voters have the right to 'know of the financing of political campaigns.'" Id. at 901 (quoting former RCW 42.17A.001(10)). Thus, the "grave nature and broad extent of GMA's offense suggest[ed] the penalty is not grossly disproportional." Id. at 902. As to the second factor, "GMA's conduct involved several illegal activities that together amounted to failing to register and intentionally concealing the true
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source of donations." Id. at 903. This also weighed in favor of a conclusion that the penalty was not grossly disproportionate.
Next, we considered the maximum penalties authorized by the legislature. Id. The FCPA had always permitted a base penalty for the amount concealed, as well as treble damages for intentional violations of campaign finance disclosure laws. Id. The maximum potential penalty that the court could have imposed on GMA under the statutes was thus "more than $43 million." Id. at 904. The fact that the court only imposed $18 million on GMA after considering mitigating factors also weighed in favor of finding that the penalty was not grossly disproportionate. Id. Finally, we considered the extent of the harm caused. We rejected GMA's argument that "concealing its contributors caused minimal harm because voters knew that grocery manufacturers opposed the initiative." Id. Instead, we found the harm was "substantial and struck at the heart of the principles embodied in the FCPA" because "[v]oters are entitled to know who is contributing to political committees and paying for political campaigns by name, not just by category." Id. (citing former RCW 42.17A.001). We concluded that the penalty was not grossly disproportionate to GMA's bad conduct.
The principles derived from Bajakajian and applied in GMA II compel the conclusion that this $35 million fine is grossly disproportionate.
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B. Applying the Bajakajian factors, the $35 million penalty is grossly disproportionate to Meta's conduct and the actual harm caused
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the [fine] must bear some relationship to the gravity of the offense that it is designed to punish." Bajakajian,
524 U.S. at 334, 336-37 ("[C]ourts . . . must compare the amount of the [penalty] to the gravity of the defendant's offense."). Meta's violations stem from its failure to disclose some of the required information about Washington political ads as requested by three individuals across 12 requests. Under Bajakajian, the penalty must be proportional to those violations, not to abstract concerns about election integrity.
i. Factor (1): The nature and extent of the violation The lead opinion's Eighth Amendment analysis takes an abstract view of the violation. In fact, the lead opinion hardly mentions the specifics of Meta's violation at all in its Eighth Amendment analysis. Lead opinion at 35-38. It notes generally that Meta's actions "def[ied] the FCPA's strong goal of promoting transparency." Id. at 38. But that would be true of any violation of the FCPA; violating the act naturally defies the act's goals. The lead opinion says nothing about the proportionality of this
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fine in relation to Meta's specific conduct: its failure to fully disclose some, but not all, of the required information about the ads requested.
Instead, Bajakajian requires us to consider the specific conduct giving rise to the violation. 524 U.S. at 337; see also Thomas v. Humboldt County, 124 F.4th 1179, 1193 (2024) ("'It is critical . . . that the court review the specific actions of the violator rather than by taking an abstract view of the violation.'" (quoting Pimentel
v. City of Los Angeles, 974 F.3d 917, 922 (9th Cir. 2020))), cert. denied 146 S. Ct. 27 (2025); State v. Timbs, 169 N.E.3d 361, 373 (Ind. 2021) (explaining that "focusing on the specific harms of specific acts," rather than "general statements" about the severity of a category of crime, aligns with Bajakajian's analysis, which "pointed out that currency-reporting crimes might generally include serious violations by 'tax evaders, drug kingpins, or money launderers' but did not impute to the defendant the offenses of others and rather considered what specific harms his specific acts had caused"); Commonwealth v. 1997 Chevrolet & Contents Seized from Young, 639 Pa. 239, 265, 160 A.3d 153 (2017) ("In judging the gravity of the offense, we look to the culpability of the defendant rather than the severity of the crime in the abstract."
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(citing Commonwealth v. Real Prop. and Improvements Commonly Known as 5444 Spruce St., 574 Pa. 423, 432, 832 A.2d 396 (2003))).16 In this case, the "nature and extent" of Meta's violations show that a $35 million civil fine is grossly disproportionate.
If the superior court's calculation is correct, Meta failed to disclose some information about Washington political ads 822 times. But even so, Meta did provide most of the required information on its Ad Library, which is free and publicly available. The information that Meta disclosed on the Ad Library as well as in its responses to individuals' requests included the name of the ad purchaser and at least an estimate of the amount expended on the ad, as well as many other pieces of data that the law requires to be disclosed.
These facts immediately distinguish the case from GMA II. The nature and extent of GMA's violation was that of a political action committee intentionally, and completely, concealing the identities of campaign donors and the amounts of their
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contributions. 198 Wn.2d at 904. We found that this "decision to conceal the identities of its campaign contributors struck at the core of open and transparent elections" because "voters have the right to 'know of the financing of political campaigns.'" Id. at 901 (quoting former RCW 42.17A.001(10)). The nature of Meta's violations is much less severe, given that Meta did not conceal the identities of ad purchasers or the cost of advertisements and that it willingly disclosed most of the required information on a public website. Further, Meta stated that one reason it refused to disclose all the required information was that it was concerned about its users' privacy. See Am. Appellant's Opening Br. at 24-25 (Wash. Ct. App. No. 84661-2-I (2023)) (discussing privacy implications of disclosing location information for its users who view ads); see also Bajakajian, 524 U.S. at 326, 337 n.12 (noting the trial court's finding that respondent failed to report the currency due to "distrust of the government"—though that reason isn't mitigating, it is relevant, because it shows Bajakajian did not have a nefarious purpose in failing to report). This distinguishes Meta's conduct from GMA's: here, there is no indication that Meta intentionally concealed information about campaign donors and expenditures in order to shield them from public scrutiny. And though the lead opinion criticizes Meta for failing to make a good-faith effort to comply with the law, Meta did take action to avoid violating the law. It
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State v. Meta Platforms, Inc., No. 103748-1 (Gordon McCloud, J., dissenting) completely banned political ads in Washington, given its expectation about how difficult it would be to comply with the law.
Any violation of the FCPA hampers the FCPA's goals. But we must consider the specific conduct that constitutes the violation to determine whether the penalty is disproportionate. Here, Meta's failure to provide some of the information required to be disclosed differs greatly from GMA's intentional shielding of donor identity. This Bajakajian factor weighs in favor of finding the $35 million fine disproportionate to Meta's conduct.
ii. Factor (2): Whether the violation was related to other illegal activities The lead opinion asserts that "the second . . . factor[] [is] not relevant here as neither side argues that Meta's activities relate to other legal violations."
Lead opinion at 37.
The lead opinion is wrong. The fact that Meta's activities do not relate to other violations actually weighs in favor of Meta here. Just as in Bajakajian, Meta's violation was purely a reporting violation. If it had disclosed the required information, there would have been no problem with Meta running the ads. And there is no suggestion that Meta refused to disclose the required information in connection with a larger plot (and other unlawful acts) by Meta to undermine
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State v. Meta Platforms, Inc., No. 103748-1 (Gordon McCloud, J., dissenting) election transparency in Washington, as was the case in GMA II. 198 Wn.2d 903. Because Meta's violations are isolated and not related to other legal violations, this factor weighs in favor of concluding that a $35 million penalty is grossly disproportionate to its conduct.
iii. Factor (3): The other penalties that may be imposed for the violation The lead opinion asserts that the third factor is "not relevant here as neither side argues . . . that other penalties (save for an injunction) may be imposed."
Lead opinion at 37.
This is incorrect. The FCPA penalty statute authorizes referral for criminal prosecution for certain violations. For example, "A person who, with actual malice, violates a provision of this chapter is guilty of a misdemeanor under chapter 9.92 RCW." Former RCW 42.17A.750(2)(a) (2019). A misdemeanor is punishable by only 90 days in prison, or a fine of up to just $1,000, or both. RCW 9.92.030. No one argues that Meta should be subject to criminal prosecution for its violations, presumably because its culpability falls below "actual malice." The potential criminal penalty for violating the statute—reserved for the most culpable offenders—is limited to 90 days in jail and/or a $1,000 fine. RCW 9.92.030. And yet Meta faces a $35 million penalty for a comparatively less culpable violation.
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State v. Meta Platforms, Inc., No. 103748-1 (Gordon McCloud, J., dissenting) Another consideration is the fact that the trial court imposed the maximum statutory penalty ($10,000 per violation, trebled for an intentional violation) on each violation. But Meta's violations consisted of failing to disclose some required information, not withholding or concealing all information. And, as discussed above, Meta did not conceal the identities or expenditure amounts of ad purchasers, a key reason why this court found GMA's conduct so objectionable.
To be sure, the fact that a lesser penalty exists does not necessarily show that a fine is disproportionate. GMA II, 198 Wn.2d at 904 (citing $100,348.00 in U.S. Currency, 354 F.3d at 1122). But Meta's violations are less significant than the conduct at issue in GMA; hence, this factor tends to show that the fine was excessive.
iv. Factor (4): The extent of the harm caused The final factor is the extent of the harm caused. The lead opinion describes that harm in the most generic terms possible. It acknowledges that "Meta did not outright hide the identity of political contributors" like GMA did, but it concludes without further analysis that Meta's actions "similarly defy the FCPA's strong goal of promoting transparency." Lead opinion at 37-38.
But when conducting a proportionality analysis, "generic considerations of harm" are "largely unhelpful" because "all crimes have a negative impact in some
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State v. Meta Platforms, Inc., No. 103748-1 (Gordon McCloud, J., dissenting) general way to society." 1997 Chevrolet, 639 Pa. at 299. As mentioned above, any disclosure-related violation of the FCPA will of course hinder the FCPA's goal of promoting disclosure. But to determine whether the penalty is grossly disproportionate, we must look closely at the actual harm caused by Meta's violations of the FCPA.
In this case, that actual harm is minimal, especially compared with the conduct in GMA. In GMA II, we held that the organization's intentional concealment of donor identities and amounts "was substantial" because "[v]oters are entitled to know who is contributing to political committees and paying for political campaigns by name."
198 Wn.2d at 904. Here, Meta did not withhold identities of ad purchasers or information about the cost of the ads. It published that information (with the cost represented as a range) on its Ad Library, available to the public. The extent of the harm caused by Meta's conduct is clearly significantly lower than the harm caused by GMA's conduct.
And while I disagree with Meta that the extent of the harm is "limited" to the three individuals whose requests were unfulfilled, the fact that only three people were deprived of requested information bears on the extent of the harm Meta caused. See lead opinion at 37 (quoting Suppl. Br. of Pet'r Meta Platforms, Inc. at 30-31).
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Considering each of the Bajakajian factors, Meta's failure to disclose some, but not all, of the required information about political advertisements, even 822 times, is grossly disproportionate to the $35 million penalty. That is the State's—and country's—largest campaign finance penalty ever. But this is certainly not the State's—or the country's—largest campaign finance violation ever. It is not even a crime.
C ONCLUSION
Political advertising is political speech. Whether we like the content of that speech or not, it is entitled to the highest protection. But even under the lead opinion's lower exacting scrutiny standard, a law like the FCPA that targets campaign speech must be narrowly tailored to serve an important government interest. One of the key factors we must examine in deciding whether the law is narrowly tailored is the burden that the law places on the regulated entity and the speech-chilling effects of the law more broadly. Here, Meta shows a genuine issue of material fact relating to the extent of the burden imposed by the disclosure law. I would therefore reverse the trial court's grant of summary judgment in favor of the State.
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And even if the trial court correctly calculated the number of Meta's FCPA violations at 822, its $35 million civil penalty is grossly disproportionate to the offense and violates the Eighth Amendment.
I therefore respectfully dissent.
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Madsen, J.P.T.
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