85 F.4th 493
9th Cir.2023Background
- San Francisco voters adopted Proposition F, adding a requirement that certain independent-expenditure and ballot-measure committee ads list the committee’s top three contributors and, if any top contributor is itself a committee, the top two donors to that secondary committee (with dollar amounts on print disclaimers).
- Plaintiffs are a primarily formed independent-expenditure committee (No on E), its treasurer Todd David, and a contributing committee (Ed Lee Dems); they challenged the secondary-contributor on-advertisement disclaimer as violating the First Amendment and sought a preliminary injunction.
- The Committee had three $5,000 donors, two of which were committees with their own large donors, so the ordinance would force naming secondary donors on ads the Committee planned to run.
- The district court denied a preliminary injunction; plaintiffs appealed. The court addressed mootness (election passed) and merits on an interlocutory basis.
- The Ninth Circuit held the appeal not moot under the "capable of repetition, yet evading review" doctrine (based on David’s history and intent to run similar committees/ads), applied exacting scrutiny to the compelled-disclosure challenge, and affirmed the denial of the preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness / jurisdiction | Challenge moot because the June 2022 election passed | Exception applies because elections are short and plaintiff David will likely run similar future committees/ads | Not moot: fits "capable of repetition, yet evading review" for at least David |
| Standard of review | Ordinance is a hybrid and should receive strict scrutiny | Compelled on-ad disclaimers/disclosures are reviewed under exacting scrutiny | Exacting scrutiny applies |
| Substantial relation to government interest | Secondary disclosures are confusing and undermine informational interest | Requirement furthers voter informational interest by exposing hidden funding routed through committees | Substantial relation exists; ordinance furthers informational interest in funding sources |
| Burden / tailoring (First Amendment) | Disclaimers are unduly burdensome (consume ad space, chill association); less intrusive alternatives exist (online databases, limit to earmarked donations) | Burden is modest; on-ad disclaimers give immediate info; City will not enforce where disclaimers would consume most ad space | Burden is not shown to be severe; ordinance is sufficiently tailored under exacting scrutiny; prelim injunction denial affirmed |
Key Cases Cited
- Buckley v. Valeo, 424 U.S. 1 (establishes disclosure interest and exacting scrutiny for compelled political disclosures)
- Citizens United v. FEC, 558 U.S. 310 (applies exacting scrutiny to disclaimer/disclosure requirements in elections)
- John Doe No. 1 v. Reed, 561 U.S. 186 (applies exacting scrutiny to compelled disclosure)
- Davis v. FEC, 554 U.S. 724 (disclosure/qualification principles under exacting review)
- Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (discusses compelled-disclosure burdens; Court applied exacting scrutiny framework)
- Brumsickle v. Dennis, 624 F.3d 990 (9th Cir.) (applies exacting scrutiny to political-ad disclaimers)
- Family PAC v. McKenna, 685 F.3d 800 (9th Cir.) (recognizes informational interest and assesses associational burden)
- ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir.) (permitting looking beyond misleading entity names to reveal actual contributors)
- Yes on Prop B v. City & County of San Francisco, 440 F. Supp. 3d 1049 (N.D. Cal.) (earlier challenge: enjoined application to very small/short ads but upheld as to larger ads)