Background
Washington’s Fair Campaign Practices Act (FCPA), former ch. 42.17A RCW, requires “digital communications platforms” to maintain and publicly disclose detailed records about political advertisements targeted at Washington users — including audience demographics, number of impressions, exact costs, and payment information. Meta Platforms, Inc., the parent company of Facebook, Instagram, WhatsApp, and Messenger, is undisputedly subject to the law as a “digital communications platform” and “commercial advertiser.” Between 2019 and 2021, three members of the public — Eli Sanders, Tallman Trask, and Zach Wurtz — submitted 12 separate requests to Meta for records about political advertisements. Meta did not dispute that its responses to those requests violated the FCPA and its implementing regulation, WAC 390-18-050.
The Washington Attorney General filed suit in King County Superior Court in April 2020. Following cross-motions for summary judgment, the trial court ruled in the State’s favor, found 822 separate violations (counting each advertisement sought in a request as a separate violation), and imposed the statutory maximum of $10,000 per violation. Because the court found Meta’s violations intentional, it trebled both the civil penalties and legal fees as the statute permits, resulting in $24,660,000 in civil penalties and $10,522,159.59 in legal costs — a total of $35,182,159.59 — plus an injunction. The Court of Appeals affirmed in a published opinion, State v. Meta Platforms, Inc., 33 Wn. App. 2d 138, 560 P.3d 217 (2024).
Meta petitioned the Washington Supreme Court, renewing three challenges: (1) that the FCPA as applied violates the First Amendment; (2) that the penalty was miscalculated because violations should be counted per request, not per advertisement; and (3) that the total penalty violates the Eighth Amendment’s Excessive Fines Clause.
The Court’s Holding
The court issued a per curiam opinion reflecting a divided nine-justice bench. On liability, six justices agreed that the FCPA as applied to Meta does not violate the First Amendment and affirmed the ruling on liability — though they divided on the applicable standard of scrutiny. The three-justice lead opinion, authored by Justice Whitener and joined by Chief Justice Stephens and Justice Pro Tempore Yu, applied exacting scrutiny — the standard the U.S. Supreme Court has consistently used for campaign-finance disclosure laws — and upheld the FCPA. Three concurring/dissenting justices would have applied deferential scrutiny and reached the same pro-State result. Three dissenting justices would have reversed and remanded for further fact-finding on Meta’s First Amendment claim.
On the penalty calculation, no majority coalesced. Three justices (the lead opinion) would affirm the per-advertisement counting method; three (the concurrence/dissent) would reverse and count violations per request; and three (the dissent) declined to join either position. Because no majority exists to reverse, the penalty judgment stands affirmed by operation of law. On the Eighth Amendment challenge, six justices — the lead opinion and the concurrence/dissent — held, assuming without deciding that the Eighth Amendment applies in this context, that the penalty does not constitute an excessive fine. Three dissenting justices would have reversed on that ground.
Applying exacting scrutiny, the lead opinion held that the FCPA satisfies both prongs of that test: it is substantially related to a sufficiently important government interest (election transparency and an informed electorate) and is narrowly tailored to serve that interest. The court rejected Meta’s argument that strict scrutiny should apply because the law targets a platform rather than a political actor, reasoning that the rationale behind exacting scrutiny — that disclosure laws are a less restrictive alternative to speech bans — applies equally to nonpolitical entities like advertising platforms. The court also rejected Meta’s proposed alternatives (time-limited disclosure windows, advertiser self-identification of political ads, disclosure only to the State) as insufficient to achieve the FCPA’s goal of full public transparency.
Key Takeaways
- Exacting scrutiny — not strict scrutiny — is the correct First Amendment standard for campaign-finance disclosure laws applied to digital advertising platforms, even when the platform is not itself a political actor.
- Washington’s FCPA survives exacting scrutiny: the state’s interest in election transparency is sufficiently important, Meta exclusively controls the microtargeting data voters need to evaluate political ads, and no alternative approach provides equivalent disclosure.
- When no majority of the Washington Supreme Court can agree on how to resolve a penalty dispute, the lower court’s judgment stands affirmed by default — leaving Meta facing over $35 million in trebled penalties and fees.
- Meta’s voluntary business decision to stop accepting Washington political ads (and its continued hosting of such ads despite that stated ban) did not alter the constitutional analysis or shield it from liability.
Why It Matters
This decision is a significant win for state-level campaign-finance regulators seeking to impose transparency obligations on major social media companies. By holding that exacting scrutiny — rather than the more demanding strict scrutiny — governs disclosure laws aimed at advertising platforms, the Washington Supreme Court rejected an argument that, if accepted, could have severely hampered states’ ability to regulate political ad transparency on platforms like Meta, Google, and X. The ruling puts Washington at the forefront of states willing to impose and enforce substantial financial penalties on Big Tech for noncompliance with disclosure regimes.
The case also illustrates the practical power of per-violation penalty structures: 822 violations, each drawing the $10,000 statutory maximum and then trebled for intentional conduct, produced a judgment exceeding $35 million against one of the world’s wealthiest corporations. With the FCPA now recodified as Title 29B RCW (effective January 1, 2026), and with other states watching Washington’s approach, this decision may accelerate legislative and regulatory efforts nationwide to hold platforms accountable for the political advertising data they collect and profit from.