California Group Asks Ninth Circuit to Rule 28-Second Ad Disclaimer is Too Long

Government cannot co-opt a speaker’s message to promote its own, lawsuit says

April 22, 2020   •  By IFS Staff   •  
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Washington, DC – A California ballot committee late yesterday asked the Ninth Circuit Court of Appeals to rule that San Francisco’s disclaimers for campaign ads are unconstitutionally long. The law requires committees to list their donors on their ads, as well as donors to other groups that never gave to the committee itself. For Yes on Prop B, the group that brought the lawsuit, the required disclaimer takes 28 seconds to read and covers 30% or more of its printed ads.

The First Amendment does not allow the government to take over such a large portion of a speaker’s message, the lawsuit says. The group is represented by attorneys from the Institute for Free Speech in the case, Yes on Prop B v. San Francisco.

“The government’s power to require a simple ‘paid for by’ disclaimer is not a license to force any information it chooses into an ad. San Francisco’s disclaimer makes it nearly impossible for groups to use common, even essential, advertising formats,” said Institute for Free Speech Legal Director Allen Dickerson.

Yes on Prop B was formed by San Francisco political activist Todd David to support a ballot measure providing funding for earthquake and fire preparedness. The group’s efforts to inform and motivate voters were effectively silenced by San Francisco’s lengthy disclaimer. Here is the disclaimer that the law forced Yes on Prop B to include:

“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.”

All of this information was already public under San Francisco and California law. The group does not object to reporting its donors or including a statement of attribution on its ads. Donors who gave to groups that only later gave to Yes on Prop B, however, should not be forcibly associated with ads they did not support.

In addition to being misleading, such a lengthy disclaimer chills political speech and harms small campaigns that rely on cost-effective modes of communication, the group says.

“These requirements prevent campaigns from getting their message out. How are groups supposed to communicate with voters if their ads are eaten up by a disclaimer?” said Todd David, the Founder and Treasurer of Yes on Prop B.

The lower court generally upheld the disclaimers so long as they do not take up more than 40% of an ad. In doing so, it went against Ninth Circuit precedent that struck down disclaimers on ads for sugary beverages taking up no more than 20% of an ad. San Francisco’s campaign ad disclaimer is more burdensome and applies to a more protected class of speech: speech about elections.

“The Supreme Court has allowed simple ‘paid for by’ attribution statements to survive constitutional scrutiny, but it has never blessed on-communication donor disclosure at all, much less the lengthy and misleading approach San Francisco has mandated,” the group’s brief notes.

To read the brief, click here. For additional background on the case, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

IFS Staff

https://www.ifs.org/author/ccp-staff/

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