440 F.Supp.3d 1049
N.D. Cal.2020Background:
- San Francisco enacted amendments (Proposition F) requiring audio/video ads to carry a spoken disclaimer at the beginning and requiring written ads to list the committee’s top three donors (>= $5,000) and—if a donor is itself a committee—the top two donors to that donor-committee; written disclaimers must be in 14‑point font.
- Yes on Prop B is a primarily formed ballot‑measure committee supporting an earthquake‑safety bond; it received $5,000 each from three other committees and plans to use short digital videos, small Chinese‑language newspaper "ear" ads, yard/window signs, and palm cards.
- The mandated spoken disclaimer for Yes on Prop B’s videos would take ~28 seconds; the printed disclaimers would occupy large percentages of economical small ads (up to 100% of some ear ads and 75–80% of 5"×5" ads).
- Yes on Prop B sought a preliminary injunction to enjoin enforcement of the spoken disclaimer rule and the Proposition F amendments as applied to its advertising.
- The court applied exacting scrutiny to disclosure/disclaimer rules generally, found the rules unconstitutional as applied to smaller/shorter ads (where the disclaimer would leave little or no room for message), and enjoined enforcement for such ads; but it upheld the rules as applied to larger/longer ads and rejected the facial challenge and forced‑association/chill arguments to the extent raised.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Do Proposition F’s formatting/length requirements (spoken‑first disclaimer; larger font) unduly burden speech? | The disclaimers are so long/cumbersome that they foreclose use of cost‑effective short/small ads and thus substantially burden First Amendment speech. | The law furthers an important informational interest; disclaimers occupying prominent positions are permissible; a 40% occupation is acceptable based on precedent. | As‑applied injunction granted for ads where the disclaimer occupies >40% (short videos, 5"×5" and ear ads); for larger/longer ads (disclaimer ≤ ~35%) the burden is not unconstitutional under exacting scrutiny. |
| 2) Are secondary‑contributor (donors‑of‑donors) disclosure requirements unconstitutional forced association? | Requiring names/amounts of secondary contributors forces association and misattributes endorsement; risks voter confusion and coerces speech. | Disclosure furthers the informational interest because primary donors (especially ad‑hoc committees) may be opaque; voters benefit from knowing ultimate funders. | Held not unconstitutional as a forced‑association claim; voter‑confusion theory rejected on speculation grounds; secondary disclosures are substantially related to the informational interest. |
| 3) Do secondary‑contributor disclosures impermissibly chill contributions? | Potential donors have declined or hesitated to give because of downstream disclosure of their names, chilling contributions. | Any deterrent effect is modest and justified by the government’s informational interest. | The alleged chill is at most modest; Ninth Circuit precedent treats that as a tolerable burden and the requirement survives exacting scrutiny. |
| 4) Is a facial injunction appropriate against Proposition F? | Yes on Prop B asks for a nationwide/enforcement‑wide injunction arguing widespread chilling and confusion. | The statute has many legitimate applications; a facial challenge is disfavored. | Facial challenge fails; plaintiff did not show a substantial number of unconstitutional applications. Injunction limited to as‑applied relief for Yes on Prop B’s small/short ads. |
Key Cases Cited
- Citizens United v. FEC, 558 U.S. 310 (disclosure/disclaimer requirements reviewed under exacting scrutiny; require substantial relation to important interest)
- Davis v. FEC, 554 U.S. 724 (governmental interest must reflect seriousness of First Amendment burden)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (preliminary‑injunction standard)
- Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (rejects voter‑confusion associational theory as speculative)
- Buckley v. Valeo, 424 U.S. 1 (limits on restraints that reduce quantity/diversity of political speech)
- Human Life of Washington v. Brumsickle, 624 F.3d 990 (9th Cir.) (informational interest in referendum context supports disclosures)
- American Beverage Ass'n v. City & County of San Francisco, 916 F.3d 749 (9th Cir.) (Zauderer commercial‑disclosure context and analysis of unduly burdensome warnings)
- Family PAC v. McKenna, 685 F.3d 800 (9th Cir.) (disclosure‑related chill on donations is usually a modest burden)
- ACLU v. Heller, 378 F.3d 979 (9th Cir.) (usefulness of disclosures to expose interests behind ad‑hoc organizations)
- Yamada v. Snipes, 786 F.3d 1182 (9th Cir.) (upholding disclaimers as means to inform voters)