SAN FRANCISCO (CN) — A federal judge signaled Thursday he will likely deny a political committee’s request for a temporary restraining order against San Francisco's requirement of disclaimers in election ads.
San Franciscans Supporting Prop B sued City Attorney David Chiu and others on May 11, protesting the city’s requirement that committees must run a message disclosing their campaign’s top three donors of $5,000 or more at the top of campaign ads. If one of those donors is a political action committee, that committee’s top two donors must also be disclosed.
The group, supported by Edwin M. Lee Asian Pacific Democratic Club PAC and Neighbors for a Better San Francisco Advocacy, argues San Francisco’s restrictions, punishable by fines up to $5,000 if violated, are “wholly at odds with the guarantees of the First Amendment.”
The plaintiffs say the city’s requirement that ads disclose top donors would be “distracting and driving away listeners before they even hear the speaker’s message.”
“Going so far swallows the committee’s communications, scares away donors and otherwise limits speakers’ and donors’ ability to speak and associate, and misleads voters as to who supports the committee’s communications," the plaintiffs say in their complaint.
But U.S. District Judge Charles Breyer has a history of upholding the ordinance. In 2020, he rejected most of a lawsuit seeking to overturn the rules and found that when applied to larger ads, the new rules do not unduly burden free speech and serve a governmental interest “informing voters about who is paying for political advertising” and do not unduly burden free speech.
Referring to that ruling at a motion for preliminary injunction hearing Thursday, Breyer told the committee’s attorney Owen Yeates, “I appreciate the fact that you no doubt believe I got it wrong, which is fine.”
Yeates, of the nonprofit Institute for Free Speech, argued the two cases are different because the committee’s case does not involve a true disclaimer — only the city’s required disclaimer about donors.
“We’re dealing with something different, which is requiring donors, that wouldn’t normally be put in disclosure, be put on the face of the communication. By doing that, it does begin to put a limit on campaign activities,” Yeates said. He argued that the city’s required disclaimer would use 30 seconds of ad time, which he called “a substantial change in the content of the communication.”
Yeates also said voters would be confused by seeing an ad open with a disclaimer mentioning the city attorney’s direction for campaign ads, when Mr. Chiu is not involved with supporting the ad.
“We don’t even want to have his name on the communication. The city’s the one wanting us to do it,” Yeates said.
Arguing for the city, attorney Tara Steeley noted Breyer has already found the ordinance requirements "are tailored to governmental interest.”
Steeley rebutted claims of voter confusion, citing Washington State Grange v. Washington State Republican Party. "The plaintiffs have not identified a single case that supports this idea that there’s a difference between true disclaimers and disclaimers. That’s what Prop F requires," Steeley said, referring to the proposition from which the ordinance stems.
Breyer did not indicate when he would rule.
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