SAN FRANCISCO (CN) – Largely rejecting claims that an ad disclaimer law hinders political speech, a federal judge said Friday he will uphold the bulk of a San Francisco ordinance that requires political ads disclose top donors and secondary funding sources.
“It’s sort of like sunshine, or maybe a little cloudy,” U.S. District Judge Charles Breyer said of the disclosure law in court. “It is geared to making sure that when voters exercise their franchise, they have as good an understanding … that it’s all right out there.”
Proposition F, approved by 77% of San Francisco voters in November 2019, requires print, audio and video political ads disclose the top three donors who contributed at least $5,000. If one of those donors is a political action committee, that committee’s top two donors must also be disclosed.
Yes on Prop B, a committee sponsoring a ballot measure for a $628.5 million earthquake safety and emergency response bond in San Francisco’s March 3 election, sued the city in January seeking a court order to block enforcement of the law.
The committee says the law unconstitutionally burdens its right to free speech by requiring disclaimers that take up a significant portion of advertisements. The disclaimer would take up nearly 20% of flyers, 35% of yard or window signs and 75% to 100% of small-print newspapers ads. Additionally, the disclosure would take up about 28 seconds in audio and video ads, effectively blocking the committee from publishing short ads in those formats.
“The disclaimers the city now forces plaintiffs to communicate are so long and cumbersome that they ‘effectively rule out’ methods of communication that happen to be some of the most cost-efficient methods of communications available to small, grassroots campaigns, such as internet videos, newspaper ads, and volunteer phone banks, and would “drown out” their message on other forms of communication,” the committee wrote in its 32-page motion for a preliminary injunction.
To bolster its case, the committee cited an en banc Ninth Circuit panel’s January 2019 decision in American Beverage Association v. San Francisco, which blocked the city from requiring health warnings that would take up 20% of billboard ads for sodas and sweetened drinks.
Judge Beryer found that and similar court decisions were “not really on point” because this law was passed by a voter referendum and regulates political speech as opposed to commercial speech.
Representing the Yes on Prop B committee, attorney Kristen Rogers countered that the First Amendment should apply to all laws whether they are passed by legislators or approved by voters.
“It’s very important in the First Amendment context that regardless of how a law is enacted, that the First Amendment operates in the same way,” Rogers said.
Arguing for San Francisco, Deputy City Attorney Tara Steeley said the city must balance competing interests of protecting political speech while ensuring the city has an educated body of voters.
“Of course political speech is valuable, protected by the First Amendment, but the government has an important governmental interest in making sure that voters can follow the money,” Steeley said. “They need to know who is speaking to them.”
Noting that the First Amendment has limits, Breyer cited Justice Oliver Wendel Holmes’ famous metaphor from the 1919 decision Schenck v. United States, which noted that shouting “fire” in a crowded theatre would not be permitted under the Constitution.
The judge also rejected Yes on Prop B’s argument that donor information is easily accessible on the San Francisco Ethics Commission’s website. The judge suggested that putting the onus on voters to look up that information would not match the law’s intent.
“You’re telling me, ‘Yes. There’s a way. You drop whatever you’re doing. Get in your car. If you’re very lucky, you’ll get to City Hall before the polls closed and say, ‘I want to see the form,’” Breyer said dismissively.
Both sides also debated whether the law applies to campaign volunteers’ phone calls to voters. The city maintains the law applies to automatic robocalls but not one-on-one phone conversations. Yes on B argues that the law as written would apply to campaign volunteers’ one-on-one phone calls.
While refusing to block most of the law, Breyer agreed that requiring lengthy disclaimers for small-print and short-length political ads is likely unconstitutional because they would “clearly just overwhelm the message.”
The judge indicated he will issue partial injunction blocking those types of restrictions but upholding the bulk of the disclaimer requirements.
Steeley asked the judge to limit the injunction so it only applies to the Yes on Prop B committee. Rogers countered that limiting relief would lead to more litigation and detailed inquiries into each political speaker’s issues with the law.
“If we are to ask every potential speaker in this next election to seek similar relief with what the court is asking of us, that would result in a morass of litigation on nitty-gritty factual disputes,” Rogers said.
After 20 minutes of debate, Breyer took the arguments under submission.
Earlier this month, the city agreed to be subject to a partial injunction barring it from enforcing the law for Yes on Prop B’s small newspaper ads and audio and video ads of 30 seconds or less through March 3. A partial injunction was issued Wednesday.
The law requires Yes on Prop B to display the following disclaimer in political ads: “Ad paid for by Yes on Prop B, Committee in support of the Earthquake Safety and Emergency Response Bond. Committee major funding from: 1. United Democratic Club of San Francisco – contributors include San Francisco Association of Realtors, Committee on Jobs Government Reform Fund; 2. Edwin M. Lee Democratic Club Political Action Committee – contributors include Committee on Jobs Government Reform Fund; 3. Yes on A, Affordable Homes for San Franciscans Now! – contributors include Salesforce.com, Inc., Chris Larsen. Financial disclosures are available at sfethics.org.”
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