Yes on Prop B v. City and County of San Francisco

Background

California and San Francisco law requires political committees to include disclaimers and donor disclosures in their advertisements. San Francisco recently adopted two additional requirements: spoken disclaimers had to appear at the beginning of audio and video advertisements, and advertisements paid for by primarily formed independent-expenditure or ballot-measure committees had to identify their three largest qualifying donors. If a listed donor was itself a committee, the advertisement also had to identify that committee’s two largest qualifying donors. Non-audio advertisements had to include the contributors’ donation amounts, and written advertisements had to use 14-point type.

Yes on Prop B was a primarily formed committee supporting Proposition B. It planned to use six-, fifteen-, and thirty-second digital video advertisements, yard or window signs, and Chinese-language newspaper advertisements. The required spoken disclaimer took about 28 seconds to read. The written disclaimer occupied 75% to 100% of a 5-by-5-inch advertisement or smaller “ear” advertisement, and about 31% to 38% of several larger signs and cards.

Yes on Prop B sought a preliminary injunction, which is a temporary court order issued before final judgment. It asked the court to stop San Francisco from enforcing both the spoken-disclaimer rule and the changes adopted through Proposition F. The committee argued that the requirements imposed an excessive burden on political speech, forced it to associate with secondary contributors, and discouraged political donations.

Legal standard

To obtain a preliminary injunction, Yes on Prop B had to show a likelihood of success on the merits, likely irreparable harm without an injunction, favorable balancing of hardships, and that an injunction served the public interest. San Francisco had the burden of showing Proposition F was constitutional. The court evaluated the political disclaimer and disclosure rules primarily under exacting scrutiny, a constitutional test requiring a substantial relationship between the disclosure requirement and an important governmental interest.

Burden on political speech

The court divided the advertisements into two groups. For advertisements in which the required disclaimer occupied more than 40% of the space or running time, San Francisco agreed that the burden was unconstitutional, and both parties sought an injunction. The court found that the disclaimers occupied 75% to 100% of the proposed 5-by-5-inch newspaper ads, smaller “ear” ads, and digital or audio ads lasting 30 seconds or less. Because the disclaimers left little or no room for the committee’s political message, the court held that applying Proposition F to those advertisements was unconstitutional.

For larger or longer advertisements, the court upheld the requirements at the preliminary-injunction stage. It recognized San Francisco’s important interest in helping voters understand who was trying to influence them in a ballot-measure campaign. After the smaller advertisements were excluded, the disclaimers would occupy no more than approximately 35% of the committee’s proposed advertisements, leaving almost two-thirds for its political message. The court found that this burden was not inappropriate given the government’s informational interest. It declined to adopt a general rule that any disclaimer occupying 40% or less of an advertisement is automatically constitutional and did not decide whether the requirements applied constitutionally to live telephone calls.

Secondary contributors

The court rejected Yes on Prop B’s challenge to the requirement that it identify donors to committees that had financially supported it. The court found a substantial relationship between those disclosures and San Francisco’s interest in informing voters about the interests behind political advertisements. It reasoned that naming only the committee that gave money to Yes on Prop B might not reveal the interests supporting that committee, while identifying that committee’s own major contributors could provide useful information.

The court also rejected the committee’s forced-association argument. It reasoned that the committee was not being required to support speech it opposed; it was being required to report that it had indirectly received financial support from organizations and individuals connected to its contributing committees. The court found no basis to assume that voters would misunderstand the meaning of the disclosures. It further concluded that the evidence of possible deterrence of donations showed, at most, a modest burden that was reasonably related to the important informational interest.

Facial challenge and disposition

Yes on Prop B sought an injunction against all enforcement of Proposition F, which would have required relief beyond the committee’s own advertisements. The court treated that request as a facial challenge—a claim that a law is invalid across its applications—and held that the committee had not shown that a substantial number of Proposition F’s applications were unconstitutional. The court therefore limited the injunction to enforcement against Yes on Prop B.

The court granted in part and denied in part the motion for a preliminary injunction. It enjoined the City and County of San Francisco from enforcing the Proposition F disclaimer laws against Yes on Prop B’s proposed 5-by-5-inch newspaper advertisements, smaller “ear” advertisements, and spoken disclaimers on digital or audio advertisements of 30 seconds or less. The court otherwise denied the requested injunctive relief. The court also granted the parties’ unopposed requests for judicial notice and granted the unopposed motion to file an amicus curiae brief.