Smith v. City of San Jose CA6 ( 2013 )

Filed 12/17/13 Smith v. City of San Jose CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
TED SMITH, H037626
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. CV089167)
v.
CITY OF SAN JOSE et al.,
Defendants and Respondents.
Appellant Ted Smith raises facial challenges to the constitutionality of several San
Jose Municipal Code (SJMC) ordinances regulating and defining expenditure lobbyists
and in-house lobbyists, and a SJMC ordinance prohibiting lobbyists from intentionally
deceiving or attempting to deceive city officials about pending legislative or
administrative actions. Respondents are the City of San Jose and the San Jose Elections
Commission.1 Smith filed a taxpayer suit over the ordinances in question, alleging that
they infringe upon the constitutional right to free speech, are overbroad, and are unduly
vague. The trial court below denied Smith’s motion for summary judgment and granted
the City’s motion for summary judgment in part, after finding that the expenditure
lobbyist ordinance, in-house lobbyist ordinance, and anti-deceit ordinance all passed
constitutional muster. Smith appeals.
We conclude that the City’s expenditure lobbyist, in-house lobbyist, and
anti-deceit ordinance are not facially unconstitutional. We affirm the judgment.
1
We will collectively refer to the respondents as “City” for clarity.
FACTUAL BACKGROUND
Smith’s Standing
Smith is a taxpayer and property owner who resides in the City of San Jose. On
appeal, Smith challenges three of the City’s ordinances: (1) the definition and regulation
of “expenditure lobbyist” (SJMC, § 12.12.180C), (2) the definition and regulation of
“in-house lobbyist” (id., B), and (3) the City’s anti-deceit ordinance prohibiting
individuals from intentionally deceiving a public official about pending administrative or
legislative activity (id., § 12.12.500C). Smith filed a lawsuit, authorized under Code of
Civil Procedure section 526a, challenging the ordinances.2
Lobbyist Registration and Requirements
Lobbyists working within the City are subject to certain rules and requirements, as
outlined in SJMC section 12.12.400 et seq. Under the SJMC, the term “lobbyist”
includes those individuals that fall within the definition of an expenditure lobbyist, an
in-house lobbyist, or a contract lobbyist under the municipal code. All lobbyists must
register with the city clerk no later than 10 days after meeting the definition of a lobbyist
under the SJMC. (SJMC, § 12.12.400A.) Registration includes submission of a
threshold report. For in-house lobbyists and expenditure lobbyists, this registration report
2
“An action to obtain a judgment, restraining and preventing any illegal
expenditure of, waste of, or injury to, the estate, funds, or other property of a county,
town, city or city and county of the State, may be maintained against any officer thereof,
or any agent, or other person, acting in its behalf, either by a citizen resident therein, or
by a corporation, who is assessed for and is liable to pay, or, within one year before the
commencement of the action, has paid, a tax therein. This section does not affect any
right of action in favor of a county, city, town, or city and county, or any public officer;
provided, that no injunction shall be granted restraining the offering for sale, sale, or
issuance of any municipal bonds for public improvements or public utilities. [¶] An
action brought pursuant to this section to enjoin a public improvement project shall take
special precedence over all civil matters on the calendar of the court except those matters
to which equal precedence on the calendar is granted by law.” (Code Civ. Proc., § 526a.)
2
includes the requirement that they provide “[a] brief description of the legislative or
administrative action(s) the lobbyist seeks to influence.” (Id., §§ 12.12.410C, ¶ 2,
12.12.410D, ¶ 2.) Lobbyists are required to renew their registration each year. (Id., §
12.12.400A, B.) In addition to this registration requirement, lobbyists must also submit
quarterly reports to the city clerk. (Id., § 12.12.430A.) Registration and renewal of
registration are accompanied with mandatory fees. (Id., § 12.12.440A, B.) As amended
in 2005, the current registration fee for lobbyists is $350. (Id., § 12.12.440.)
According to the SJMC, the city attorney may investigate alleged violations of the
lobbyist ordinances. (SJMC, § 12.12.610A.) If an individual does not comply with the
mandates of registration, the city clerk may issue an order to show cause at the request of
any city official. (Id., § 12.12.620A.) The order to show cause will specify a time and
place for the individual to appear before the elections commission to demonstrate that he
or she has either complied with registration or is exempt from registration. (Id., §
12.12.620B.) Violations of the lobbyist ordinances may result in civil penalties of up to
$5,000. (Id., § 12.12.630.)
Not all individuals are subject to the registration requirements under the SJMC.
Section 12.12.020 of the SJMC provides a list of exemptions. Those exempted include:
(1) a public official acting in his or her public capacity, (2) individuals solely engaged in
publication of news periodicals or editorials that directly or indirectly encourage
government action, (3) individuals preparing documents under the California
Environmental Quality Act of 1970 or those persons hired by the City to perform work
for the City, (4) business owners whose attempts to influence the government are on
behalf of their business and who has not made or solicited contributions for the contacted
official in excess of $1,000 in the last 12 months, who has not retained an individual to
engage in lobbying activities on the business’ behalf, and whose employees are not
3
actively engaged in lobbying activities on behalf of the business or the owner,3 (5) those
whose attempts to influence government action are limited to publicly appearing at public
meetings and other public proceedings and preparing, processing, or submitting
documents or writings for use in public meetings or other public proceedings, (6)
individuals meeting with city officials to report mismanagement or government waste, (7)
those meeting with the city attorney to discuss any claim or litigation matter where the
City is a party, (8) uncompensated members of the board of directors of nonprofit
organizations, (9) members of neighborhood associations, (10) those whose
communications are solely related to collective bargaining agreements between the City
and a recognized employee organization or proceedings before the City of San Jose Civil
Service Commission, (11) those solely communicating about an existing contract
between themselves and the City, or (12) compensated officers or employees of a
nonprofit organization whose attempts to solicit government action are on behalf of the
organization. (SJMC, § 12.12.020.)
The Expenditure Lobbyist Definition
As defined by the SJMC, an expenditure lobbyist is “[a] person who makes
payments or incurs expenditures in the aggregate amount of five thousand dollars
($5,000.00) or more during any calendar year in connection with carrying out public
relations, advertising or similar activities with the intent of soliciting or urging, directly
or indirectly, other persons to communicate directly with any City Official in order to
attempt to influence a legislative or administrative action. The five thousand dollars
($5,000.00) threshold does not include: [¶] 1. Compensation paid to Contract Lobbyists
3
The business owner exemption applies only to registration as an in-house
lobbyist. Business owners meeting the qualifications of this exemption, but who meet the
qualifications for either an expenditure lobbyist or contract lobbyist, must still register as
a lobbyist. (SJMC, § 12.12.020D.)
4
or In-House Lobbyists for lobbying activity; or [¶] 2. Dues, donations, or other economic
consideration paid to an organization, regardless of whether the dues, donations or other
economic consideration are used in whole or in part for lobbying activity.” (SJMC, §
12.12.180C.)
Expenditure lobbyists must provide registration information which includes the
names of all owners, officers and employees conducting lobbying activities, as well as a
brief description of the legislative or administrative actions the lobbyist seeks to
influence.4 (SJMC, § 12.12.410D.) SJMC section 12.12.170 provides a definition as to
what constitutes lobbying activity: “influencing or attempting to influence a City Official
or City Official-Elect with regard to a legislative or administrative action of the City or
Redevelopment Agency.” For the purposes of the section, “influencing” is further
defined as “contacting, either directly or indirectly, for the purpose of promoting,
supporting, modifying, opposing, causing the delay or abandonment of conduct, or
otherwise intentionally affecting the official actions of the City Official or City
Official-Elect, by any means, including, but not limited to providing, preparing,
processing, or submitting information, incentives, statistics, studies or analyses.” (Id., §
12.12.170A.)
The In-House Lobbyist Definition
The SJMC defines an in-house lobbyist as: “Any person, including a business,
corporation, association, political action committee, or any other organization if its
owners, officers, or employees have engaged in lobbying activity on its behalf and whose
aggregate time engaging in lobbying activity total [sic] ten (10) hours or more in a
consecutive twelve (12) month period.” (SJMC, § 12.12.180B.)
4
Section 12.12.170 of the SJMC also provides a definition for what constitutes
“legislative action” or “administrative action” under the code. (SJMC, § 12.12.170B-C.)
5
SJMC section 12.12.410C provides some clarity as to what constitutes an in-house
lobbyist, as it requires that in-house lobbyist registration reports must provide
information including (1) names of each owner, officer, and employee conducting
lobbying activities on the in-house lobbyist’s behalf and (2) a brief description of the
legislative or administrative action(s) the lobbyist seeks to influence.
The same definitions discussed in SJMC section 12.12.170 regarding what
constitutes “lobbying activity” and “influencing” is applicable to the in-house lobbyist
ordinances.
The Anti-Deceit Ordinance
Smith also challenges the constitutionality of the City’s ban against deceit of city
officials. The City’s anti-deceit ordinance states that no person engaged in a lobbying
activity may “[i]ntentionally deceive or attempt to deceive a City Official as to any
material fact which is pertinent to any pending or proposed legislative or administrative
action.” (SJMC, § 12.12.500C.) As noted earlier, the SJMC provides a definition for
what constitutes “legislative action” or “administrative action.” (Id., § 12.12.170B-C.)
“Legislative action” means “the drafting, introduction, consideration, modification,
enactment or defeat of any resolution, ordinance, amendment thereto, report, nomination
or other action of the Mayor, City Council, Redevelopment Agency of the City, or City
board or commission, or task force or any joint powers authority of which the City is a
party.” (Id., § 12.12.170B.) “Administrative action” means “the proposal, drafting,
development, consideration, advocacy, recommendation, adoption, amendment or
approval of any rule, regulation, agreement, contract, permit, license or hiring action.”
(Id., § 12.12.170C.)
PROCEDURAL HISTORY
Smith filed his initial complaint for declaratory and injunctive relief and to restrain
illegal expenditure of public money on July 3, 2007. Smith filed a first amended
6
complaint on October 4, 2007. The first amended complaint alleged constitutional
deficiencies with the City’s ordinances regulating and defining lobbyists and campaign
expenditures, including the ordinances defining and regulating in-house lobbyists and
expenditure lobbyists, and barring deceit of city officials.
Smith filed a motion for summary judgment, or in the alternative, summary
adjudication, on all of his claims on February 16, 2010. The City filed its own motion for
summary judgment, or in the alternative, summary adjudication, on all of Smith’s claims
on the same date.
The trial court issued an order on the parties’ respective motions for summary
judgment on March 4, 2011, granting the City’s motion in part and denying Smith’s
motion with respect to Smith’s challenges to the definition and regulation of expenditure
lobbyists, in-house lobbyists, and the anti-deceit ordinance.5 After a bench trial on the
remaining disputed issue with regard to the constitutionality of the City’s late campaign
contribution ordinance, the trial court entered a final judgment on October 7, 2011,
disposing of all issues and finding the late campaign contribution ordinance
unconstitutional. Smith filed a timely notice of appeal over the judgment on November
17, 2011.
STANDARD OF REVIEW
Smith challenges the constitutionality of the City’s municipal ordinances defining
and regulating expenditure lobbyists and in-house lobbyists, and the regulation
prohibiting deceit of a city official by those engaged in lobbying activity, as they are
written. These facial challenges to the constitutionality of the ordinances are reviewed
5
The trial court made several other determinations in its order that are unrelated to
this current appeal. It found that several of Smith’s challenges were moot, and further
found that a factual dispute existed with regard to Smith’s challenge to the City’s
ordinance on campaign contribution periods. Therefore, the trial court denied summary
adjudication with respect to Smith’s challenge to campaign contribution periods.
7
under a de novo standard of review. (Griffith v. City of Santa Cruz (2012) 207
Cal.App.4th 982, 990.) Furthermore, we review the trial court’s denial and grant of
summary judgment under a de novo standard of review. (Monticello Ins. Co. v. Essex
Ins. Co. (2008) 162 Cal.App.4th 1376, 1385.)
DISCUSSION
Smith raises several arguments on appeal. First, he claims that the expenditure
lobbyist and in-house lobbyist ordinances are content- and speaker-based restrictions on
speech that violate the United States Constitution and the California Constitution and are
therefore subject to strict scrutiny. Second, Smith argues that even if this court were to
find that the correct standard of scrutiny is exacting scrutiny, not strict scrutiny, the
expenditure lobbyist ordinance is still unconstitutional under the more lenient standard.
Third, Smith contends that the in-house lobbyist ordinance is similarly unconstitutional
and is vague and overbroad. Lastly, Smith argues that the City’s anti-deceit ordinance is
unconstitutionally vague. We understand Smith to be launching a facial challenge to the
constitutionality of the ordinances in question, as he has not challenged the validity of the
ordinances as applied to him.6 We address each of Smith’s facial challenges in turn.
I. Expenditure Lobbyist Ordinance and Free Speech
Smith’s first argument is that the City ordinances regulating and defining
expenditure lobbyists and in-house lobbyists must be subject to strict scrutiny review
because the ordinances function as content- and speaker-based restrictions on free speech.
(U.S. Const., 1st Amend.; Cal. Const. art. I, §§ 2-3.) Preliminarily, we determine that we
6
In the trial court proceedings below, Smith at one point alleged that he was
launching a facial challenge to the constitutionality of the ordinances as well as an
as-applied challenge. We do not understand Smith to be advancing an as-applied
challenge on appeal.
8
must review the expenditure lobbyist ordinance under an exacting scrutiny standard of
review, contrary to Smith’s claims.
A. Exacting Scrutiny is Applicable to Disclosure and Registration Requirements
Not all restrictions on speech are subject to the strict scrutiny standard. The
California Supreme Court has held that when the challenged regulation “merely has an
incidental effect on exercise of protected rights, strict scrutiny is not applied.” (Fair
Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47 (FPPC).) However,
strict scrutiny will be applied if there is a significant interference or “appreciable impact”
on the exercise of an individual’s fundamental right. (Ibid.) We find the exacting
scrutiny standard of review, as set forth in FPPC, applicable in this particular case.
In FPPC, the California Supreme Court contemplated the constitutionality of
regulations governing lobbyists codified in the Political Reform Act of 1974 (Gov. Code,
§ 81000 et seq.). (FPPC, supra, 25 Cal.3d at p. 37.) Under the Political Reform Act,
lobbyists were required to register and report all payments for lobbying activities. (Id. at
p. 46.) Lobbyists were also required to report any transactions of $500 or more in a
single year with a business entity that the lobbyist knows or has reason to know that any
state candidate, or legislative agency, or elective official, is an owner, director, partner,
officer, or manager or has more than a 50 percent interest. (Ibid.) Advocates against
these regulations argued that since speech and petition rights were implicated, the court
must apply strict scrutiny. (Ibid.) The court agreed in part, but disagreed in part.
With respect to the registration and reporting requirements, the Supreme Court
found that these provisions were not “direct limitations on the right to petition for redress
of grievances.” (FPPC, supra, 25 Cal.3d at p. 47.) The court reasoned that the burden
created by registration and reporting did not substantially interfere with the lobbyist’s
ability to “raise his voice,” and that “[w]hile the burden of disclosure might be substantial
for those engaging in extensive lobbying activities, the burden is not great when viewed
9
in the context of the total activities engaged in.” (Ibid.) Furthermore, the court found
that “the burden placed on employers of lobbyists to disclose their expenditures for
lobbying purposes, and the action thereby sought to be influenced, does not constitute a
substantial interference with the exercise of petition and speech rights.” (Id. at p. 48.)
The Court further drew a distinction that requiring an individual engaged in a business,
such as lobbying, to describe it and to report its receipts and expenses, cannot be “viewed
in our commercial society as a substantial impediment to engaging in that business.” (Id.
at pp. 47-48.)
However, with respect to the transaction reporting requirements at issue, the court
found that strict scrutiny was applicable. (FPPC, supra, 25 Cal.3d at pp. 48-49.) The
transaction reporting requirement contemplated in FPPC required lobbyists to report
transactions totaling $500 or more in a single year with business entities of which the
lobbyist knows or has reason to know that any state candidate, or legislative, agency, or
elective official is a proprietor, partner, director, officer or manager or has more than a 50
percent interest. (Id. at p. 48.) The court considered the transaction reporting
requirements to be so “onerous as to constitute a significant interference with the
fundamental right to petition,” as the extent of transaction reporting would not be directly
tied to the extent of lobbying activity. (Ibid.)
For example, the extent of reporting would be tied to the lobbyist’s transactions
with a business entity that may not have anything to do with lobbying activity at all.
(FPPC, supra, 25 Cal.3d at p. 48.) The court reasoned that the reporting requirement
would mean that “if a director of the Bank of America is also an agency official--perhaps
a Regent of the University of California--a lobbyist and any person who employs a
lobbyist or spends more than $250 in a single month to influence legislative or
administrative action must disclose transactions above the statutory amount with the
Bank of America. The requirement applies even though the lobbying activities have
10
nothing to do with the university or banks.” (Ibid.) The court thereafter found that the
transaction reporting requirement failed to survive strict scrutiny review because the
“right to petition for redress of grievances . . . may not be conditioned upon disclosure of
irrelevant private financial matters unrelated to the petition activity.” (Id. at p. 49.)
The application of the less stringent exacting scrutiny review has also been applied
by the United States Supreme Court with regard to disclaimer and disclosure
requirements. The United States Supreme Court has found that these requirements “ ‘
impose no ceiling on campaign-related activities,’ [citation], and ‘do not prevent anyone
from speaking.’ ” (Citizens United v. Federal Election Com’n (2010) 558 U.S. 310, 366
(Citizens United).) “ ‘[E]xacting scrutiny,’ ” as defined by the Citizens United court,
requires a substantial relationship between the disclosure requirement and a “
‘sufficiently important’ ” governmental interest. (Id. at pp. 366-367.)
We find that under the existing precedent set forth by the California Supreme
Court and the United States Supreme Court, we must apply an exacting scrutiny standard
of review to the sections of the SJMC that Smith challenges. Smith’s argument that strict
scrutiny applies is unavailing. It is true that laws restricting political speech are often
subject to a strict scrutiny standard of review, as articulated by the United States Supreme
Court in Citizens United. (See Citizens United, supra, 558 U.S. at pp. 336-338.) In
Citizens United, the court utilized a strict scrutiny standard of review when determining
the constitutionality of United States Code section 441b which made it a felony for
corporations to either expressly advocate the election or defeat of candidates or to
broadcast “electioneering communications” within 30 days of a primary election and 60
days of a general election. (Citizens United, supra, at p. 337.) Other laws subject to
strict scrutiny have included a law requiring a permit at the outset, a law impounding
proceeds on receipts or royalties, and a law seeking to exact a cost after the speech
occurs. (Id. at pp. 336-337.) In FPPC, the California Supreme Court applied strict
11
scrutiny review only to the transaction reporting requirement at issue, as that requirement
was not tied to a lobbyist’s lobbying activity. (FPPC, supra, 25 Cal.3d at pp. 48-49.)
Here, the disclosure and registration requirements imposed upon in-house
lobbyists and expenditure lobbyists in the challenged SJMC ordinances do not prevent an
individual from exercising his right to petition or to speak. (See Doe v. Reed (2010) 130
S.Ct. 2811, 2818 [2010 U.S. LEXIS 5256] [finding that requirement of Washington’s
Public Records Act, requiring disclosure of information regarding signatories of
referendum petitions subject to exacting scrutiny review] (Doe).) Furthermore, the
disclosure requirements are tied to the extent and amount of petitioning activity
undertaken by an in-house lobbyist or expenditure lobbyist. The SJMC ordinances in
question create a burden, but this burden in no way acts as a prohibition. Individuals
seeking to influence city actions may certainly spend more than the $5,000, the threshold
registration requirement, on lobbying activity. Furthermore, Smith’s attempt to draw a
distinction that the SJMC ordinances are speaker-based, as the ordinances provide
exemptions from disclosure for certain individuals and entities such as news reporters and
nonprofit organizations, is similarly unavailing. The regulations challenged in FPCC,
supra, 25 Cal.3d 33, required only lobbyists, not other members of the public, to report
expenditures and disclose information about their lobbying activity. (Id. at p. 46.) The
California Supreme Court found strict scrutiny inapplicable in FPCC. (Id. at p. 47.) We
therefore apply an exacting scrutiny standard of review to the challenged ordinances, and
determine whether the ordinances bear a substantial relationship to a sufficiently
important government interest.
B. The Expenditure Lobbyist Ordinance Survives Exacting Scrutiny
SJMC section 12.12.180C defines an expenditure lobbyist as any individual that
spends more than $5,000 in a year to intentionally solicit or urge, directly or indirectly,
other persons to communicate directly with any city official in order to attempt to
12
influence a legislative or administrative action. Smith argues that the ordinance is
unconstitutional on the ground that it fails to survive exacting scrutiny. We disagree, as
the disclosure and registration requirements bear a substantial relationship to a
sufficiently important government interest. (Human Life of Washington Inc. v.
Brumsickle (9th Cir. 2010) 624 F.3d 990, 1008 (Human Life of Washington).)
1. Vital Governmental Interest
The first step of our exacting scrutiny review is to determine whether there is a
vital government interest in the registration and disclosure of information regarding
expenditure lobbyists. We find that there is.
The United States Supreme Court, in United States v. Harriss (1954) 347 U.S. 612(Harriss), recognized that Congress possesses a valid interest in determining who seeks
to influence legislation, and therefore found no error with the Federal Regulation of
Lobbying Act and its requirement that lobbyists report their lobbying receipts and
expenditures. (Id. at pp. 625-626.) The Supreme Court reasoned that “legislative
complexities are such that individual members of Congress cannot be expected to explore
the myriad pressures to which they are regularly subjected. Yet full realization of the
American ideal of government by elected representatives depends to no small extent on
their ability to properly evaluate such pressures.” (Id. at p. 625.) The California
Supreme Court has also recognized the existence of this important government interest in
FPPC, where the court acknowledged that the Harriss court found that “Congress has a
valid interest in determining the source of voices seeking to influence legislation and
could reasonably require the professional lobbyist to identify himself and disclose his
lobbying activities,” (FPPC, supra, 25 Cal.3d at p. 47) and that the court itself had in
previous cases “upheld reasonable statutes requiring disclosure of financial activities of
persons engaged in political processes.” (Ibid.)
13
There are several United States Supreme Court cases recognizing a vital
government interest in providing the electorate with information so that it may make an
informed decision amongst candidates for offices. (Buckley v. Valeo (2003) 424 U.S. 1(Buckley), superseded by statute on other grounds as stated in McConnell v. Federal
Election Com’n (2003) 540 U.S. 93.) For example, in Citizens United, the United States
Supreme Court recognized that the First Amendment serves to protect political speech.
The Supreme Court reasoned that disclosure placed a burden on certain political speech,
but that there was a government interest in ensuring that citizens and shareholders of
corporations can “react to the speech of corporate entities in a proper way.” (Citizens
United, supra, 558 U.S. at p. 371.)
To this end, we conclude that there is a vital government interest in providing
disclosure both to lawmakers and to the public of individuals who seek to influence
legislation through expenditure of money. The vital governmental interest here is the
same as the one contemplated in Harriss and FPPC, and similar to the interest discussed
by the court in Citizens United. Transparency in the electoral process, and the
dissemination of information to decisionmakers has long been recognized and
acknowledged by both the United States Supreme Court and the California Supreme
Court as important governmental interests. Similarly here, there is a vital government
interest in providing information to the public about those who seek to influence local
government action through lobbying activity. We see no difference between a
government interest in providing transparency with respect to federal or state officials
and a government interest in providing transparency to city officials and local lawmakers.
Smith attempts to distinguish the SJMC ordinances by pointing out that the
expenditure lobbyist ordinance, unlike the lobbyist disclosure and registration
requirements contemplated in Harriss and FPPC, covers individuals who are not
professional, paid lobbyists. The City contends that this argument is fatally flawed, in
14
part because the lobbyist regulations contemplated in FPPC were not entirely restricted
to professional lobbyists. One of the regulations challenged in FPPC mandated that
“[p]ersons who employ a lobbyist or pay $250 in any month to influence legislative or
administrative action must also file reports. Among other matters, the reports must
disclose businesses engaged in, the total amount of payments to influence legislative or
administrative action, any contributions made, the names of persons who received $25 or
more, and a specific description of legislative or administrative action sought to be
influenced.” (FPPC, supra, 25 Cal.3d at p. 46, italics added.) This regulation was
ultimately found to be constitutionally valid and supported by a sufficiently important
governmental interest. (Id. at p. 48.)
In Harriss, the United States Supreme Court reviewed the constitutionality of
portions of the Federal Regulation of Lobbying Act, which provided that “ ‘[e]very
person receiving any contributions or expending any money for the purposes designated’
” in another portion of the Act to file a statement containing certain information,
including the sum of expenditures and contributions made and information on the
recipients of the expenditures and contributions. (Harriss, supra, 347 U.S. at p. 614, fn.
1.) Nonetheless, these requirements, as specified in a separate section of the Act, were
made applicable only to those persons who “ ‘by himself, or through any agent or
employee or other persons in any manner whatsoever, directly or indirectly, solicits,
collects, or receives money or any other thing of value to be used principally to aid, or the
principal purpose of which person is to aid, in the accomplishment of any of the
following purposes: [¶] ‘(a) The passage or defeat of any legislation by the Congress of
the United States. [¶] ‘(b) To influence, directly or indirectly, the passage or defeat of any
legislation by the Congress of the United States.’ ” (Id. at pp. 618-619.) In short, “the
solicitation, collection, or receipt of money or other thing of value is a prerequisite to
coverage under the Act.” (Id. at p. 619.)
15
Smith is correct that the regulations contemplated in Harriss applied only to
lobbyists receiving compensation for their lobbying activity. However, the same cannot
be said for the regulation contemplated in FPPC. In fact, the definition of an expenditure
lobbyist under the SJMC is quite similar to the regulation at issue in FPPC. Under the
regulation analyzed in FPPC, any person who paid more than $250 in any month to
influence legislation is required to file monthly reports. The SJMC ordinance governing
expenditure lobbyists, as described ante, requires registration for any individual who
spends more than $5,000 in a year with the intent to influence others, either directly or
indirectly, to contact city officials to influence legislation. These individuals must
indicate what legislative or administrative action they seek to influence.
Furthermore, we agree with the trial court’s assessment of the issue in that we fail
to see how there is a clear delineation between the government’s interest in disclosure of
financial contributions and lobbying activity from paid lobbyists and the financial
contributions and lobbying activity from unpaid lobbyists. The government interest in
providing transparency and information to the public and other decisionmaking bodies
remains the same for both types of lobbying activity.7
Smith argues that the ordinance “apparently requires expenditure lobbyists to
register even if others contact City officials for reasons and on topics other than those
urged by the expenditure lobbyist,” and that therefore the reporting requirement “may not
bear any relation at all to communications that reach City officials.” Smith therefore
likens the expenditure lobbyist ordinance to the transaction reporting requirement deemed
unconstitutional in FPPC. We disagree with Smith’s assessment of the ordinance. The
7
The Blue Ribbon Task Force, created by the City to consider options that could
lead to greater transparency and accountability in public decisionmaking, developed
proposed amendments to the City’s lobbyist ordinances and recommended them to the
city council.
16
ordinance requires an expenditure lobbyist to register if the lobbyist spends $5,000 or
more in a calendar year on public relations or advertising with the intent to solicit or urge
others to communicate directly with any city official in an effort to influence legislative
or administrative actions. (SJMC, § 12.12.180C.) As stated in the ordinance itself, the
registration requirement is directly linked to lobbying efforts. Registration is not
contingent upon individuals contacting city officials. Rather, registration and disclosure
are contingent on the amount of expenses incurred by the expenditure lobbyist on
lobbying activity. The registration and disclosure requirements are tied to an expenditure
lobbyist’s lobbying efforts, unlike the transaction reporting requirement in FPPC.
However, the existence of a vital government interest in disclosure does not
necessarily render the definition and regulation of expenditure lobbyists constitutional.
In order to survive exacting scrutiny, the ordinances must be sufficiently related to this
important interest.
2. The Expenditure Lobbyist Ordinance is Sufficiently Related
Smith argues that the expenditure lobbyist ordinance is not sufficiently related to
the governmental interest in disclosure in two ways. He contends that the definition of
expenditure lobbyist is underinclusive and overinclusive. This paradoxical argument
arises from the way the definition of “expenditure lobbyist” explicitly excludes certain
individuals from the registration requirement, such as heads of nonprofit organizations,
but includes, as a general rule, any other individual that meets the ordinance’s
expenditure threshold of $5,000. The validity of the statute rests on whether this
definition is sufficiently related to the government’s interest in disclosure. We find that it
is.
As previously described, state and federal courts have acknowledged the existence
of an important government interest in public disclosure of lobbyists and those who
spend money to influence legislation. (See Harriss, supra, 347 U.S. at pp. 625-626;
17
FPPC, supra, 25 Cal.3d at p. 47.) However, this interest is different from the disclosure
required by the expenditure lobbyist ordinance, as the ordinance mandates disclosure and
registration if an individual spends $5,000 per year “in connection with carrying out
public relations, advertising or similar activities with the intent of soliciting or urging,
directly or indirectly, other persons to communicate directly with any City Official in
order to attempt to influence a legislative or administrative action.” (SJMC, §
12.12.180C.)
As the United States Supreme Court has held, in order to determine whether
governmental interests are sufficient in order to justify restrictions, we must consider the
extent of the burden placed on First Amendment rights. (Buckley, supra, 424 U.S. at p.
68.) Here, it appears any burden would be minimal. There are no restrictions placed on
the amount of lobbying an expenditure lobbyist may engage in, and there are no rules on
how much a lobbyist may spend. As our Supreme Court explained in FPPC, the
registration, reporting, and disclosure of receipts imposed on lobbyists “does not
substantially interfere with the ability of the lobbyist to raise his voice. While the burden
of disclosure might be substantial for those engaging in extensive lobbying activities, the
burden is not great when viewed in the context of the total activities engaged in.”
(FPPC, supra, 25 Cal.3d at p. 47.)
Similarly, here the burden that would be imposed on those engaged in extensive
lobbying activities would be greater, but such a burden would be proportionate to the
total amount of lobbying activity an expenditure lobbyist seeks to partake. Furthermore,
the SJMC itself provides for certain exemptions. Exemptions apply to those who are
purely engaged in “publication or broadcasting of news items, editorials, or commentary
which directly or indirectly urges governmental action,” (SJMC, § 12.12.020B) and to
those whose attempts to influence governmental action are limited to “[p]ublicly
appearing at a public meeting, public hearing, or other official proceeding open to the
18
public” (id., ¶ 1) and or “[p]reparing, processing, or submitting documents or writings in
connection with the governmental action for use at a public meeting, public hearing, or
other official proceeding open to the public.” (Id., ¶ 2.) Individuals who choose to urge
governmental action by spending money printing leaflets or appearing at public hearings
would be exempt from the disclosure requirements set forth in the expenditure lobbyist
ordinance. So would those individuals who decide to publish opinion pieces or broadcast
their views through other forms of media on topics relevant to pending legislative actions
in the city. When the expenditure lobbyist ordinance is read in conjunction with the rest
of the statutory scheme, it is apparent that those individuals solely engaged in issue
advocacy will not be subject to the burden of reporting and disclosure.
Smith also does not cite any specific evidence that the burden of disclosure and
reporting would chill political speech and would be overinclusive. In the absence of such
evidence we cannot infer that such a burden exists with respect to his facial challenge.
Smith argues that the United States Supreme Court’s decisions in McIntyre v. Ohio
Elections Comm’n (1995) 514 U.S. 334, 342 (McIntyre), and Talley v. California (1960)
362 U.S. 60, 64-65, are instructive as they guarantee that the right to remain anonymous
in the advocacy of political issues is an aspect of First Amendment rights that must be
protected. In McIntyre, the Supreme Court, following its similar decision in Talley
regarding an ordinance in California, held that an Ohio law prohibiting anonymous
leafleting was unconstitutional. (McIntyre, supra, at p. 357.) In contrast, anonymous
leafleting under the San Jose Municipal Code is permitted and no disclosure is required,
as those engaged solely in the publication of such materials will not be subject to the
expenditure lobbyist disclosure requirements given the exemption provided in SJMC
section 12.12.020C.
In fact, the McIntyre court drew a distinction between the disclosure of an author’s
name in a handbill and the disclosure of expenditures, the latter of which the court found
19
to be less worthy of constitutional protection. The court reasoned that in contrast to a
leaflet’s “personally crafted statement of a political viewpoint,” which would
unmistakably reveal the author’s view on a controversial issue, “[d]isclosure of an
expenditure and its use, without more, reveals far less information. It may be information
that a person prefers to keep secret, and undoubtedly it often gives away something about
the spender’s political views. Nonetheless, even though money may ‘talk,’ its speech is
less specific, less personal, and less provocative than a handbill--and as a result, when
money supports an unpopular viewpoint it is less likely to precipitate retaliation.”
(McIntyre, supra, 514 U.S. at p. 355.) The ordinances in question here similarly only
require disclosure of the expenditure of money, and do not require the explicit
identification of handbills or leaflets.
Smith maintains that the expenditure lobbyist ordinance is overinclusive as it fails
to “clearly mark the boundary between the permissible discussion of issues and invitation
to contact others about those issues” given the ordinance’s definition. Expenditure
lobbyists are defined in the SJMC as those individuals who incur more than $5,000 in
expenses during any calendar year in connection with carrying out advertising, public
relations, or similar activities, with the intent to either directly or indirectly urge others to
contact city officials. (SJMC, § 12.12.180C.) We fail to see how the wording of the
ordinance on its face suggests an overinclusive nature. The ordinance states that those
who engage in the public discourse regarding an issue, or publicly invite others to contact
city officials about certain topics, are exempt from the disclosure requirements of the
expenditure lobbyist ordinance. It is only when an individual creates advertising or
engages in public relations activity, and spends more than $5,000 in a year on such
activity, is he or she they then subject to the disclosure and reporting requirements set
forth under the SJMC.
20
Smith then contends that the expenditure lobbyist ordinance is “underinclusive,”
as it exempts certain types of people from the registration and disclosure requirements
without “any rationale for doing so.” A list of exemptions from the registration
requirements is located at SJMC section 12.12.020. Smith cites City of Ladue v. Gilleo
(1994) 512 U.S. 43 and First National Bank of Boston v. Bellotti (1978) 435 U.S. 765,
785 for the proposition that “an exemption from an otherwise permissible regulation of
speech may represent a governmental ‘attempt to give one side of a debatable public
question an advantage in expressing its views to the people.’ ” (City of Ladue v. Gilleo,
supra, at p. 51.) Smith also cites Brown v. Entm’t Merchs. Ass’n (2011) 131 S.Ct. 2729[2011 U.S. LEXIS 4802], arguing that “[u]nderinclusiveness raises serious doubts about
whether the government is in fact pursuing the interest it invokes, rather than disfavoring
a particular speaker or viewpoint.” (Id. at p. 2740.) The cases Smith relies on for his
argument on underinclusiveness do not support his position.
City of Ladue v. Gilleo concerned a city ordinance prohibiting homeowners from
displaying any signs on their property except for “ ‘residence identification’ ” signs, “
‘for sale’ ” signs, and signs warning of safety hazards. (City of Ladue v. Gilleo, supra,
512 U.S. at p. 45.) First National Bank of Boston v. Bellotti considered the
constitutionality of a state criminal statute forbidding banks and business corporations
from making expenditures for the purpose of influencing votes on referendum proposals.
(First National Bank of Boston v. Bellotti, supra, 435 U.S. at p. 768.) Brown v.
Entertainment Merchants Ass’n addressed a California law restricting the sale of violent
video games to minors. (Brown v. Entertainment Merchants Ass’n, supra, 131 S.Ct. at p.
2740.) There the Supreme Court determined that California had “singled out the
purveyors of video games for disfavored treatment--at least when compared to
booksellers, cartoonists, and movie producers--and has given no persuasive reason why.”
(Ibid.)
21
Unlike the laws and ordinances at issue in the aforementioned cases, the City’s
expenditure lobbyist ordinance does not prohibit certain categories of individuals from
advocating their views. The expenditure lobbyist ordinance is a burden on speech, such
that an individual who meets the definition of “lobbyist” and who is not otherwise
exempted must register. This is unlike a law prohibiting homeowners from displaying
certain signs, prohibiting businesses and corporations from making expenditures, or
prohibiting the sale of certain goods to minors. In short, the expenditure lobbyist
ordinance does not create a barrier against certain types of speech. It creates a burden on
certain individuals who meet the requirements set forth in the ordinance to register and
disclose their lobbying activity.
Smith claims that the City has exempted certain individuals from the burden of
registration without any rationale for doing so. Certainly, as case law has shown, an
underinclusive statute may be found unconstitutional. However, a regulation is “not
fatally underinclusive simply because an alternative regulation, which would restrict
more speech or the speech of more people, could be more effective. The First
Amendment does not require the government to curtail as much speech as may
conceivably serve its goals.” (Blount v. S.E.C. (D.C. Cir. 1995) 61 F.3d 938, 946.) The
underinclusive analysis is primarily concerned with ensuring that “ ‘the proffered state
interest actually underlies the law,’ [citation], a rule is struck for underinclusiveness only
if it cannot ‘fairly be said to advance any genuinely substantial governmental interest’
[citation], because it provides only ‘ineffective or remote’ support for the asserted goals.”
(Ibid.) Smith does not proffer concrete arguments as to why the exemptions provided in
the SJMC frustrate the goals of the expenditure lobbyist ordinance, which are to inform
the public and provide transparency. It is possible that the ordinance could provide for
fewer exemptions and therefore require registration for more individuals. However,
simply because this stricter registration requirement is possible does not mean that the
22
ordinances as they currently stand are facially unconstitutional. There is a valid
government interest in requiring registration and disclosure of expenditure lobbyists, as
noted earlier. Such a government interest is not completely overridden by the existing
exemptions, rendering the ordinance ineffectual.
We therefore find that the expenditure lobbyist ordinance supports the legitimate
government interest in disclosure to the electorate, and that it imposes only modest
burdens on an individual’s First Amendment rights. The ordinance only dictates that
lobbyists must disclose expenditures, and as a result, it survives exacting scrutiny.
However, in reaching this conclusion we do not mean to imply that the statute would be
impervious to narrower as-applied challenges. (See Doe, supra, 130 S.Ct. 2811, 2821.)
Our conclusion is based solely on Smith’s broad facial challenge to the ordinance.
C. The Expenditure Lobbyist Ordinance is not Overbroad
Smith also argues that the expenditure lobbyist ordinance is unconstitutional
because it is overbroad and is not subject to a narrowing construction. Smith claims that
the expenditure lobbyist ordinance has a real deterrent effect on legitimate political
expression.
Constitutional challenges to statutes based on overbreadth with respect to free
speech will prevail if it is shown that the law inhibits an individual’s First Amendment
rights and is not subject to a narrowing construction. (Broadrick v. Oklahoma (1973) 413
U.S. 601, 611-613; Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 216.) Smith’s
challenge to the expenditure lobbyist ordinance, however, does not adequately address
the first prong of the overbreadth analysis, as Smith does not demonstrate how the
expenditure lobbyist ordinance on its face chills the exercise of political speech.
Smith argues that the deterrent effect of the ordinance is “real and substantial,”
and he points out that “not a single member of the public has ever registered as an
expenditure lobbyist.” However, the fact that no member of the public has registered as
23
an expenditure lobbyist is not evidence of a deterrent effect, nor is it evidence of a lack of
a deterrent effect. Any deductions we would make from this lack of registrants would be
solely hypothetical.
Smith insists that Government Code section 86115, a section of the Government
Code similar to the expenditure lobbyist regulation, is not sufficiently similar to the
SJMC expenditure lobbyist ordinance, and therefore fails to provide clarity or
justification of the City’s ordinance. Government Code section 86115, subdivision (b),
provides that “[a]ny person who directly or indirectly makes payments to influence
legislative or administrative action of five thousand dollars ($5,000) or more in value in
any calendar quarter, unless all of the payments are of the type described in subdivision
(c) of Section 82045” must file statements pursuant to Government Code section 86116.
Government Code section 86116 sets forth requirements that individuals subject to the
code section file periodic reports as to their expenditures on lobbying activities.
Government Code section 82045 specifies that a “payment to influence legislative or
administrative action” includes a “[p]ayment for or in connection with soliciting or
urging other persons to enter into direct communication with any elective state official,
legislative official or agency official.” (Id., § 82045, subd. (e).)
Smith argues that the trial court failed to acknowledge that the City’s expenditure
lobbyist ordinance is distinct from the state’s respective statute as the expenditure
lobbyist ordinance at issue here has a lower monetary threshold at $5,000 per year,
compared to the state’s threshold of $5,000 per calendar quarter. We recognize that there
is a difference between the thresholds required for registration under the SJMC ordinance
and the similarly worded Government Code section. Nonetheless, Smith fails to
demonstrate how the lower threshold burdens First Amendment rights. Disclosure and
registration laws are dissimilar to prohibitions on speech. Functionally, the expenditure
ordinance does not mandate that people may not speak out on a certain issue, or that they
24
cannot spend as much of their own resources as they wish on speaking out about a
particular cause. The disclosure and registration requirements only impose a burden on
individuals who meet the criteria set forth in the ordinance.
We therefore conclude that the expenditure lobbyist ordinance is not
unconstitutionally overbroad.
D. The Expenditure Lobbyist Ordinance is not Unconstitutionally Vague8
Smith also contends that the ordinance’s language is ambiguous and confusing, as
it defines expenditure lobbyists as those who intentionally, either directly or indirectly,
solicit or urge others to communicate with city officials. Smith specifically finds fault
with the statute’s lack of definition as to what would constitute an “indirect” solicitation
to urge others to communicate with a city official.
“ ‘A law is unconstitutionally vague if it fails to provide a reasonable opportunity
to know what conduct is prohibited, or is so indefinite as to allow arbitrary and
discriminatory enforcement.’ [Citations.] ‘Nevertheless, perfect clarity is not required
even when a law regulates protected speech,’ [citation], and ‘we can never expect
mathematical certainty from our language.’ ” (Human Life of Washington, supra, 624
F.3d at p. 1019.) As the United States Supreme Court has explained, “speculation about
possible vagueness in hypothetical situations not before the Court will not support a
facial attack on a statute when it is surely valid ‘in the vast majority of its intended
applications.’ ” (Hill v. Colorado (2000) 530 U.S. 703, 733 (Hill).) Additionally, “
8
Smith argues in part that the expenditure lobbyist ordinance is overbroad. He
also contends that the ordinance is unclear as it does not sufficiently define what would
constitute an “indirect” action to urge others to communicate with city officials. We find
that this argument is best interpreted as a facial vagueness challenge to the expenditure
lobbyist ordinance. Vagueness and overbreadth have been traditionally seen as “logically
related” “similar.” (Kolender v. Lawson (1983) 461 U.S. 352, 358, fn. 8.) For clarity, we
address Smith’s vagueness arguments separately.
25
‘otherwise imprecise terms may avoid vagueness problems when used in combination
with terms that provide sufficient clarity,’ [citation], and vagueness challenges will be
rejected when it is ‘clear what the ordinance as a whole prohibits.’ ” (Human Life of
Washington, supra, at p. 1021.)
The ordinance defines an expenditure lobbyist is one who, through public
relations, advertising, or similar activities, spends more than $5,000 in a calendar year
with the intent to solicit or urge, either directly or indirectly, others to communicate
directly with any city official in order to influence a legislative or administrative action.
Smith speculates as to the vagueness of the ordinance as written based on hypothetical
situations not presented before us, and does not proffer any evidence to substantiate his
assertion that the statute is invalid in the majority of circumstances. Viewed as a whole,
the expenditure lobbyist definition contains language that limits its application, and
provides a clear representation of what conduct the ordinance is meant to cover: those
who intentionally, through public relations, advertising, or similar activity, urge others to
directly communicate with city officials in order to influence a pending legislative or
administrative action. The regulation requires “intent” on the part of the speaker, thereby
limiting whatever vagueness exists due to the inclusion of the term “indirectly.”
We therefore do not find that the ordinance would be impermissibly vague as
applied to the vast majority of cases, given the limiting definition as provided by the
requirement that the expenditure lobbyist “intend” to solicit others.
II. The In-House Lobbyist Ordinance is Constitutional
Smith also challenges the constitutionality of San Jose’s ordinance regulating and
requiring disclosure and registration of in-house lobbyists. Parallel to his arguments
regarding the constitutionality of the expenditure lobbyist ordinances, Smith argues that
the in-house lobbyist ordinance violates the First Amendment and does not survive
26
exacting scrutiny, and that the ordinance is unconstitutionally overbroad and vague. We
address each of these arguments in turn.
A. The In-House Lobbyist Ordinance Survives Exacting Scrutiny
As with our review of the expenditure lobbyist ordinance, we apply an exacting
scrutiny review to the in-house lobbyist ordinance. Therefore, the in-house lobbyist
ordinance must bear a substantial relationship to a sufficiently important government
interest. (Human Life of Washington, supra, 624 F.3d at p. 1008.)
1. Vital Government Interest
The government interest with respect to disclosure and registration for in-house
lobbyists is the same interest as we discussed in the prior section addressing the
expenditure lobbyist ordinances. As discussed in Harriss and FPPC, the government has
a vested interest in providing transparency to the electorate and in determining who seeks
to influence legislation. (Harriss, supra, 347 U.S. at pp. 625-626; FPPC, supra, 25
Cal.3d at p. 47.) We reject Smith’s argument that there is no vital government interest in
disclosure with respect to private individuals, in contrast to paid lobbyists.
2. The In-House Lobbyist Ordinance is Sufficiently Related
Smith argues that the in-house lobbyist ordinance is not sufficiently related to the
government’s interest in disclosure because the threshold limit for disclosure and
registering for in-house lobbyists, 10 hours or more in a consecutive 12-month period, is
too low. Smith opines that other municipalities have similar ordinances that require
higher hour thresholds prior to registration. For example, Smith points to a local
Sacramento ordinance that requires registration for its equivalent of an in-house lobbyist
if the individual spends 100 hours or more lobbying in a three-month period.
Smith contends that there can be no legitimate interest in de minimis lobbying
efforts undertaken by uncompensated individuals. However, as we discussed earlier, the
disclosure and registration requirements for lobbyists are substantially related to a vital
27
government interest. The issue here is whether the disclosure and registration
requirement imposed on those individuals who spend more than 10 hours in a year on
lobbying activity is substantially related to the vital government interest of disclosure and
electoral transparency.
As discussed by the Ninth Circuit in Canyon Ferry Baptist Church, E. Helena v.
Unsworth (9th Cir. 2009) 556 F.3d 1021, 1033 (Canyon Ferry), the relevant question, as
acknowledged by the United States Supreme Court in Buckley, is whether the 10-hour
threshold mandated by the ordinance is “ ‘wholly without rationality.’ ” Buckley
involved a statute requiring record-keeping for contributions above $10 and disclosure of
monetary contributions above $100. (Buckley, supra, 424 U.S. at pp. 82-85.) The
Buckley court noted in its decision that thresholds created by laws were “necessarily a
judgmental decision, best left in the context of this complex legislation to congressional
discretion.” (Id. at p. 83.) The court thereafter concluded that these limits were not
“wholly without rationality” despite little evidence in the relevant legislative history that
would “indicate that Congress focused carefully on the appropriate level at which to
require recording and disclosure.” (Ibid.)
In Canyon Ferry, the Ninth Circuit utilized the Buckley court’s rationale in
deciding whether a Montana statute that required political committees to disclose any
in-kind contributions made toward candidates and ballot issues violated First Amendment
rights. (Canyon Ferry, supra, 556 F.3d at pp. 1031-1033.) The Montana statute
contained no threshold limit, and was applied to a church’s de minimis expenses,
including the minimal expenses associated with photocopying fliers and displaying a
movie, with respect to a ballot initiative on marriage. (Id. at pp. 1024-1025.) The Ninth
Circuit applied the Buckley “ ‘wholly without rationality’ ” test, and concluded that as
applied to the church’s expenditures, the statute was unconstitutional. (Id. at p. 1033.)
However, in coming to its conclusion the court limited its holding to the application of
28
the Montana statute to the in-kind contributions made by the church, and it expressed the
view that it was “not concerned with--and express[ed] no view about--the
constitutionality of Montana’s disclosure requirements in the context of candidate
elections or as applied to monetary contributions of any size.” (Id. at p. 1034.)
Furthermore, the court explained that it did not “purport to establish a level above de
minimis at which a disclosure requirement for in-kind expenditures for ballot issues
passes constitutional muster,” as determining such a threshold is “for the Montana
authorities in the first instance.” (Ibid.)
We find the rationale used by the Ninth Circuit in Canyon Ferry and the standard
set by the Supreme Court in Buckley applicable to this instant case. Smith’s argument
that the threshold of 10 hours is impermissibly low and infringes upon constitutionally
guaranteed rights is one that we cannot resolve. We cannot say that the 10 hour threshold
is “ ‘wholly without rationality’ ” with respect to the City’s interest in knowing who
seeks to influence legislative action within the municipality. Perhaps there is a threshold
where it may be impermissible, but we cannot invalidate the ordinance based on Smith’s
broad facial attack. The Canyon Ferry court based its determination that the statute was
constitutional as applied to the church’s de minimis activities, but declined to find some
sort of universal limit or threshold with respect to other in-kind contributions.
We therefore follow the same rationale advanced by the Ninth Circuit, and
conclude that the in-house lobbyist ordinance is sufficiently related to a vital government
interest, and survives exacting scrutiny analysis.
B. Vagueness and Overbreadth in the First Amendment Context
Next, Smith contends that the City’s in-house lobbyist ordinance is
unconstitutionally vague and overbroad, in part stemming from what Smith contends is
its grammatically incomprehensible structure. SJMC section 12.12.180B defines an
in-house lobbyist as “Any person, including a business, corporation, association, political
29
action committee, or any other organization if its owners, officers, or employees have
engaged in lobbying activity on its behalf and whose aggregate time engaging in
lobbying activity total [sic] ten (10) hours or more in a consecutive twelve (12) month
period.”
Smith cites several grammatical deficiencies with the wording of the ordinance.
First, he claims that structurally, the ordinance reads as “[a]ny persons, including
[persons].” Second, Smith argues that the parenthetical expression starting with the word
“including” is not closed, leading to ambiguity to whether the parenthetical should be
closed off after “organization” or “behalf.” Third, Smith contends that it is not clear
whether the phrase beginning with “aggregate time” modifies “person” or “owners,
officers, or employees.”
As previously discussed, the standard of review for unconstitutional vagueness
challenges is whether the ordinance is so vague such that it is not reasonable to know
what conduct is permitted or prohibited. (Human Life of Washington, supra, 624 F.3d at
p. 1019.) Furthermore, if an ordinance or statute is valid in the majority of its intended
applications, an ordinance or statute will survive a facial vagueness attack. (Hill, supra,530 U.S. at p. 733.) Additionally, “ ‘otherwise imprecise terms may avoid vagueness
problems when used in combination with terms that provide sufficient clarity,’ [citation],
and vagueness challenges will be rejected when it is ‘clear what the ordinance as a whole
prohibits.’ ” (Human Life of Washington, supra, at p. 1021.) Given our reading of the
ordinances discussing in-house lobbyists within the SJMC, we find that Smith’s
challenge fails. As discussed previously, “the overbreadth doctrine permits the facial
invalidation of laws that inhibit the exercise of First Amendment rights if the
impermissible applications of the law are substantial when ‘judged in relation to the
statute’s plainly legitimate sweep.’ ” (Chicago v. Morales (1999) 527 U.S. 41, 52.) With
respect to vagueness and overbreadth in the context of due process, an enactment can be
30
deemed unconstitutional if it is impermissibly vague rendering the public unable to
“guard against the arbitrary deprivation of liberty interests.” (Ibid.)
Preliminarily, Smith’s argument that the parenthetical expression after “including”
is not closed and therefore leads to ambiguity is flawed. It is apparent that the
parenthetical expression should be closed after “organization,” and not after the word
“behalf.” The placement of the conjunction “and” indicates that there are at least two
requirements to being an in-house lobbyist. The first is that the in-house lobbyist is any
person, including a business or some organization, whose employees or officers have
engaged in lobbying activity. The second is that the aggregate amount of lobbying
activity undertaken must total more than 10 hours in a 12-month period. If we utilized
Smith’s interpretation and closed the parenthetical expression after “behalf,” we would be
left with an incomprehensible statement that would essentially read: “[a]ny person,
including [organizations], and whose aggregate time engaging in lobbying activity total
ten (10) hours or more in a consecutive twelve (12) month period.”
It seems clear that the phrase “if its owners, officers, or employees have engaged
in lobbying activity on its behalf” is meant to modify the earlier string of “[a]ny person,
including a business, corporation, association, political action committee, or any other
organization,” not just the word “person.” After the words “any person,” the SJMC
ordinance continues with “including,” which indicates that the definition of “person”
relevant to the in-house lobbyist ordinance includes the string of “business, corporation,
association, political action committee, or any other organization.” As a result, a
modification of the word “any person” would therefore be applicable to the
corresponding string of nouns.
A commonsense reading of the ordinances governing in-house lobbyists and their
registration requirements demonstrates their collective meaning: businesses entities or
similar organizations are required to register if their employees, owners, or officers
31
engage in an aggregate amount of at least 10 hours of lobbying activity per 12-month
period. Smith’s assertion that the ordinance would require individuals who spend more
than 10 hours in a calendar year writing letters to a city official is unavailing. Smith is
correct in that the ordinance defines an “in-house lobbyist” as “any person.” However,
“any person” is qualified as including “any person” if its “owners, officers, or
employees” have engaged in an aggregate amount of at least 10 hours of lobbying
activity. An individual person writing letters to a city official does not have any “owners,
officers, or employees.” The intent of the City to limit the application of the in-house
lobbyist ordinance to entities, not simply individuals, is therefore evident in the language
of the ordinance itself.
This intent is further clarified in the deposition of Flora Lee Price, who was
designated as the “person most knowledgeable” with respect to the City’s lobbying
ordinances. Price has held the position of city clerk for the City of San Jose since May
2004. During a deposition, Smith’s attorney asked Price a simple scenario: if an
organization had two employees, each of whom engaged in six hours of lobbying
activity, would all three (the organization and the two employees) be required to register
as in-house lobbyists under the ordinance? Price answered that only the organization
would need to register, listing the individuals. Price’s answer is bolstered by information
on the City of San Jose’s official Web site, which was attached to Price’s declaration in
support of the City’s reply to Smith’s opposition to the City’s motion for summary
judgment.
The City maintains a Web site, published by the “Office of the City Clerk,” which
includes a “Frequently Asked Questions” page used to assist in the implementation of the
lobbying ordinances. In one section, there is a question that states: “Who Qualifies as a
Lobbyist?” With respect to in-house lobbyists, the web page explains that an in-house
lobbyist is “an entity including a sole proprietorship whose owners, officers, and
32
employees are compensated by the entity to engage in lobbying activity on its behalf and
whose collective time totals ten (10) hours or more in any consecutive twelve (12) month
period. An owner is deemed to be compensated based on his or her financial interest in
the entity.”
Smith’s hypothetical situation, that an individual who spends more than 10 hours
of his or her time writing to a city official would qualify as an in-house lobbyist, is
therefore unavailing and contrary to the language and intent of the ordinance itself. An
individual would not qualify as an in-house lobbyist under Smith’s hypothetical situation
because he or she would not be lobbying on behalf of an organization or entity, a
requirement that is written into the ordinance.9
Smith similarly advances another hypothetical situation, in which he argues that it
appears that an employee who spends one hour writing a letter to a newspaper or a city
official would therefore be required to register as an in-house lobbyist if the employee’s
coworker also spends nine hours or more engaged in lobbying activity. Again, this
imagined scenario would not trigger the requirement to register as an in-house lobbyist.
The employee Smith references is not an entity with owners, officers, or employees, and
the time the employee spent on writing the letter to the newspaper or city official would
not count toward the aggregate 10-hour threshold for registration unless the letter
constituted lobbying activity on behalf of the entity or organization. Further, as we
9
Smith also characterizes the exemption for publication or broadcasting of news
items and editorials as an exemption aimed at journalists. However, the wording of the
exemption does not preclude ordinary citizens. Smith additionally argues that the
availability of the “journalist exemption” is not obvious from a reading of the in-house
lobbyist definition, because one would have to cross-reference the definition of “lobbying
activity” with the definition of “influencing” and with the exemptions provided in the
municipal code. However, Smith does not cite to any authority for the proposition that
the structure of the municipal code can somehow render the exemptions
unconstitutionally vague. Many different codes are structured such that there are specific
sections for definitions and exemptions.
33
previously noted, “speculation about possible vagueness in hypothetical situations not
before the Court will not support a facial attack on a statute when it is surely valid ‘in the
vast majority of its intended applications.’ ” (Hill, supra, 530 U.S. at p. 733.)
Additionally, Smith’s argument that the ordinance is vague in part because of its
exemption for business owners is unsupported. Under the SJMC, certain business owners
are excluded from registration as an in-house lobbyist. SJMC section 12.12.020 provides
a list of exemptions from the registration requirements. Included in the list is an
exemption for certain business owners whose attempts to influence governmental action
are on behalf of the business, and if (1) “[t]he owner or business has not made or solicited
contributions for the elected official contacted, or a candidate or independent expenditure
committee at the behest of the elected official contacted, in an amount over one thousand
dollars ($1,000.00) within the last twelve (12) months in a City election,” (id., D ¶ 1) (2)
“[t]he owner or business has not retained a person to engage in lobbying activity on
behalf of the owner or business,” (id., ¶ 2) or (3) “[o]fficers or employees of the business
have not engaged in lobbying activity on behalf of the owner or business.” (Id., ¶ 3.) An
“owner” under SJMC section 12.12.020 is defined as any individual who has greater than
a 50 percent interest in the business.
Smith claims that the “no contribution” exception chills business owners from
making political contributions. Smith also claims that the exemptions provided to
business owners do not narrowly construe the ordinance in such a manner that the
ordinance would therefore pass constitutional muster. As discussed ante, the in-house
lobbyist ordinance does not prohibit lobbying. It only requires disclosure and
registration. Business owners are not forbidden from lobbying city officials. Smith
further contends that the exemption’s definition of an “owner” as someone who owns 50
percent or greater of a business is arbitrary, meaning that any individual who owns
exactly 50 percent of a business would never qualify as an “owner” under the exemption.
34
However, Smith does not proffer any specific arguments or point to any case law that
would support his proposition that the exemptions somehow render the ordinance
unconstitutional or infirm.
We can see that there are ways in which SJMC section 12.12.180B may have
benefited from more precise punctuation or word choice. Nonetheless, we find that as a
whole the ordinances are not so vague and inscrutable to render the definitions within
meaningless or overbroad. “[P]erfect clarity is not required even when a law regulates
protected speech.” (California Teachers Ass’n v. State Bd. of Educ. (9th Cir. 2001) 271
F.3d 1141, 1150 (California Teachers).) “Condemned to the use of words, we can never
expect mathematical certainty from our language.” (Grayned v. City of Rockford (1972)
408 U.S. 104, 110 (Grayned).) Facial vagueness challenges launched within the context
of the First Amendment are not adjudicated on the basis of whether any amount of speech
may be chilled--instead, the appropriate standard is whether a substantial amount of
legitimate speech may suffer. (California Teachers, supra, at pp. 1150-1152.)
Here, Smith fails to demonstrate that the requisite substantial amount of protected
speech will be impacted by the in-house lobbyist ordinance. As the United States
Supreme Court has noted, “[f]acial invalidation ‘is, manifestly, strong medicine’ that ‘has
been employed by the Court sparingly and only as a last resort.’ ” (National Endowment
for Arts v. Finley (1998) 524 U.S. 569, 580.) The in-house lobbyist ordinance, like the
expenditure lobbyist ordinance, does not act as a prohibition against those who engage in
lobbying activity, and does not serve to create a cap regarding the number of hours one
may spend engaged in lobbying activity. The ordinance requires that those engaging in
such activity file a registration form with the City, disclosing their lobbying activity, but
such a requirement is not a prohibition against political speech. We therefore do not find
the in-house lobbyist ordinance to be unconstitutionally overbroad or vague on its face.
35
III. The Anti-Deceit Law
Lastly, Smith challenges the constitutionality of what he refers to as the City’s
“anti-deceit ordinance,” SJMC section 12.12.500C, which provides that “[n]o person
engaged in lobbying activity” may “[i]ntentionally deceive or attempt to deceive a City
Official as to any material fact which is pertinent to any pending or proposed legislative
or administrative action.” (Id., § 12.12.500C.) Smith argues that this ordinance violates
an individual’s right to free speech as it deters a significant amount of legitimate speech
and is not subject to a narrowing construction.10 Smith states that the terms “deceit,”
“attempt,” and “material fact,” used in the ordinance, are impermissibly vague.
A. The Applicability of United States v. Alvarez
Preliminarily, the City counters that Smith’s arguments are foreclosed by the
United States Supreme Court’s decision in United States v. Alvarez (2012) 132 S.Ct.
2537 [2012 U.S. LEXIS 4879] (plur. opn. of Kennedy, J.) (Alvarez), in which a plurality
held the Stolen Valor Act of 2005 (18 U.S.C. § 704) to be unconstitutional. We disagree
with the City’s assessment of the applicability of Alvarez.
The Stolen Valor Act, at the heart of the case in Alvarez, provided that those who
falsely represent themselves either orally or through writing to have been awarded “any
decoration or medal authorized by Congress for the armed forces of the United States . . .
shall be fined under this title or imprisoned not more than six months, or both.” (18
U.S.C. § 704(a).) The plurality applied an “exacting scrutiny” analysis to the
10
In his opening brief, Smith asserts that the anti-deceit ordinance violates the
Fifth and Fourteenth Amendments of the United States Constitution because it is
unconstitutionally vague. However, in his arguments on the point, Smith does not appear
to challenge the ordinance as violative of due process (and hence, Fifth Amendment and
Fourteenth Amendment rights). Rather, Smith appears to argue that the anti-deceit
ordinance is vague and overbroad in the context of First Amendment rights, in that it
chills a substantial amount of legitimate speech and is not subject to a narrowing
construction. (Broadrick v. Oklahoma, supra, 413 U.S. at p. 613.)
36
constitutionality of the Stolen Valor Act, and ultimately held that the Act infringed upon
the right to free speech. (Alvarez, supra, 132 S.Ct. at p. 2551.) In coming to its
conclusion, the court noted that there were some prohibitions on false speech traditionally
upheld as constitutional, such as title 18 United States Code section 1001, the criminal
prohibition against false statements made to a government official. (Alvarez, supra, at
pp. 2545-2546.) The City argues that this assessment by the plurality underscores that
false speech, such as the deceit, the anti-deceit ordinance seeks to prohibit, does not
receive First Amendment protection. However, to the contrary, in noting the existence
and constitutionality of the statutes concerning false speech, the plurality made it clear
that these laws did not “establish a principle that all proscriptions of false statements are
exempt from exacting First Amendment scrutiny.” (Id. at p. 2546.)
Alvarez did not concern the constitutionality of title 18 United States Code section
1001, which is the federal statute criminalizing a false statement made to a government
official. Alvarez concerned the constitutionality of the Stolen Valor Act, which the court
ruled unconstitutional after finding the Act failed exacting scrutiny. Further, the Alvarez
court made it clear in its decision on the Stolen Valor Act that though some regulation of
false speech is considered constitutionally sound, not all regulation of false speech is
constitutional. We therefore do not find Alvarez determinative on whether the City’s
anti-deceit ordinance passes constitutional muster.
37
B. Vagueness and Overbreadth in the First Amendment Context11
We apply the same standards set forth ante in the sections discussing the
expenditure lobbyist ordinance and in-house lobbyist ordinance with respect to
overbreadth and vagueness challenges in the First Amendment context to our review of
the anti-deceit ordinance. Namely, in order to prevail on his facial challenge, Smith must
show that the law inhibits an individual’s First Amendment rights, and the law is not
subject to a narrowing construction. (Broadrick v. Oklahoma, supra, 413 U.S. at pp.
611-613; Erznoznik v. City of Jacksonville, supra, 422 U.S. at p. 216.)
Our initial inquiry is therefore whether the anti-deceit ordinance significantly
chills protected speech. Accordingly, we must first determine whether the targeted
speech in question is subject to First Amendment protection. As previously discussed,
SJMC section 12.12.500C, prohibits any person engaged in lobbying activity from
intentionally deceiving, or attempting to deceive, a city official as to any material fact
which is pertinent to any pending or proposed legislative or administrative action.
While the First Amendment grants individuals broad freedoms with respect to
speech, the right to free speech is not without limits. A look to our Penal Code and our
Civil Code reveals that there are many categories of speech on which we have placed
certain limitations. Our justice system has criminalized perjury (Pen. Code, § 118),
making a criminal threat (id., § 422) and soliciting a bribe (id., § 653f). These statutory
11
Smith appears to aggregate his constitutional challenge to the anti-deceit law
into one argument concerning vagueness. Nonetheless, our reading of Smith’s arguments
indicate that he launches two challenges, that the statute is vague with respect to certain
terms, and that it is overbroad. Overbreadth and vagueness are closely related.
Challenges with respect to overbreadth will prevail if it is shown that the law inhibits an
individual’s First Amendment rights and is not subject to a narrowing construction.
(Broadrick v. Oklahoma, supra, 413 U.S. at pp. 611-613; Erznoznik v. City of
Jacksonville, supra, 422 U.S. at p. 216.) For purposes of clarity, we will address the
arguments regarding overbreadth and vagueness separately below.
38
provisions penalize individuals for their written or spoken words, but each serve an
important governmental purpose. Under the Civil Code, we allow individuals to file
lawsuits and recover against those who intentionally deceive or defraud, those who
defame, and those whose words intentionally inflict emotional distress. This is not to say
that all false or hurtful speech fall outside the purview of First Amendment protection.
To the contrary, as the plurality in Alvarez elucidates in its opinion, the right to free
speech does extend protection to some classes of false speech, including, as Alvarez
concludes, false speech about an individual’s possession of a Congressional Medal of
Honor. (Alvarez, supra, 132 S.Ct. at p. 2551.)
Here, the speech at issue is targeted and narrow. Unlike the Stolen Valor Act, the
anti-deceit ordinance does not prohibit a certain type of false statement regardless of its
setting, whether it is taken in the context of a personal conversation or whether it is
uttered within the public domain. The anti-deceit ordinance prohibits only deceit of a
city official as to a material fact pertinent to a pending or proposed legislative or
administrative action, and only by those engaged in lobbying activity. The anti-deceit
ordinance on its face is narrowed thrice: first with respect to the speaker to whom it is
applicable (someone engaged in lobbying activity), second with respect to the content of
the speech in question (material facts pertinent to a pending or proposed legislative or
administrative action), and lastly with respect to the recipient of the speech (a city
official). Further, the ordinance plainly articulates that the speaker must have the
intention to deceive the city official. This means the speaker must know the false nature
of the statement he or she is making to the city official. While false statements certainly
do receive some measure of constitutional protection, false statements spoken with the
intent to deceive are not necessarily subject to a high level of protection.
The United States Supreme Court has articulated that “there is no constitutional
value in false statements of fact. Neither the intentional lie nor the careless error
39
materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on
public issues.” (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 340.) For this reason,
“[u]ntruthful speech, commercial or otherwise, has never been protected for its own
sake.” (Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 771.)
“Nevertheless, in some instances the First Amendment imposes restraints on lawsuits
seeking damages for injurious falsehoods. It does so ‘to eliminate the risk of undue
self-censorship and the suppression of truthful material’ [citation] and thereby to give
freedom of expression the ‘ “breathing space” ’ it needs to survive [citations]. Thus,
‘some false and misleading statements are entitled to First Amendment protection in the
political realm.’ ” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 953.)
We do not believe that the false speech targeted by the anti-deceit ordinance is
subject to First Amendment protection. As noted in Alvarez, supra, 132 S.Ct. at pages
2561 through 2562, title 18 United States Code section 1001 makes it a crime to
“knowingly and willfully” make any materially false, fictitious, or fraudulent statements
or representations “in ‘any matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States.’ ” This bar on false statements is
not limited to statements taken under oath. (Alvarez, supra, at p. 2561.) Title 18 United
States Code section 1001 is analogous in its scope to the anti-deceit ordinance challenged
in this appeal. Like section 1001, the anti-deceit ordinance only prohibits intentional
deceit to a city official about pending administrative or legislative matters within the
City’s jurisdiction. This is markedly different from the false statements in Alvarez. The
false statements in Alvarez were deemed to receive constitutional protection, but the
statements at issue were broad, as the Stolen Valor Act also prohibited false statements
made in private. (Alvarez, supra, at p. 2547.) Here, the speech targeted by the anti-deceit
ordinance is much narrower in scope.
40
Furthermore, title 18 United States Code section 1001 has survived constitutional
scrutiny from federal courts. The Ninth Circuit has previously held that “[t]here is no
first amendment protection for furnishing with predatory intent false information to an
administrative or adjudicatory body. The first amendment has not been interpreted to
preclude liability for false statements. For example, defamatory statements can be made
the basis for liability. See New York Times Co. v. Sullivan, 376 U.S. 254. [Title 18
United States Code section 1001] imposes criminal penalties for knowingly and willfully
concealing or misrepresenting material facts before any department or agency of the
United States. Courts uniformly punish perjury. As the Supreme Court stated in Gertz v.
Robert Welch, Inc., 418 U.S. 323, 340 (1974); ‘there is no constitutional value in false
statements of fact.’ Contrary to defendants’ assertions, there is simply no basis to hold
that deliberately misrepresenting facts to an administrative body for anticompetitive
purposes enjoys blanket first amendment protection.” (Clipper Exxpress v. Rocky
Mountain Motor Tariff (9th Cir. 1982) 690 F.2d 1240, 1261-1262 (Clipper Exxpress).)
In Clipper Exxpress, the Ninth Circuit discussed whether First Amendment
protections extended to false statements made to an administrative or adjudicatory body.
The Ninth Circuit considered the Clipper Exxpress defendant’s contention that if the First
Amendment did not extend to such false statements, “robust debate would be chilled.”
(Clipper Exxpress, supra, 690 F.2d at p. 1262.) The Ninth Circuit rejected this argument,
recognizing that restrictions on false statements and imposition of criminal liability for
such falsities may sometimes “hamper debate,” but that “this possibility does not require
that all such statements be immunized from liability.” (Ibid., citing to New York Times
Co. v. Sullivan (1964) 376 U.S. 254.) However, the Ninth Circuit noted that this may
“suggest that a court should adopt a stricter standard of proof, or certain additional
elements should be required.” (Clipper Exxpress, supra, at p. 1262.) Nonetheless, the
court then concluded that “[r]egardless of the degree of protection which might be found
41
appropriate for protecting defendants’ statements from antitrust liability, those limits
have been exceeded here. Clipper claims defendants knew the falsity of their statements,
and made those statements in a deliberate attempt to mislead a regulatory body. We can
conceive of no stricter standard than that satisfied by the facts alleged by Clipper.”
(Ibid.) The court then declined to extend First Amendment protection to the defendants.
(Ibid.)
We are therefore unconvinced that the speech in question--deliberately false
statements made to a city official with regard to a pending legislative or administrative
action--is protected under the First Amendment.12 As cases such as Clipper Exxpress
illustrate, some false statements are not subject to constitutional protection. This is not to
say that all false statements should not be protected, as discussed by the plurality in
Alvarez. However, unlike the speech at issue in Alvarez, the false speech targeted by the
anti-deceit ordinance is not private, nor is it broad. The anti-deceit ordinance does not
prohibit an individual from speaking falsely at home, and it does not prohibit one from
making a false statement about a pending legislative activity to others. Further, the
exemption provision located at SJMC section 12.12.020 applies to the anti-deceit
ordinance. Meaning, those individuals engaged solely in publication or broadcasting of
news items, editorials, or commentary which directly or indirectly urges governmental
action are not covered.
Accordingly, we find that the false speech targeted by the anti-deceit ordinance
does not warrant blanket constitutional protection. Nonetheless, even if we were to find
12
Smith states that the anti-deceit ordinance would hold ordinary people liable for
negligent or innocent misrepresentations to city officials. However, this argument is
inapposite to the text of the ordinance, which requires that there be an intent to deceive a
city official. (SJMC, § 12.12.500C.) Accordingly, those individuals who innocently or
negligently misrepresent material facts to a city official, with no intent to deceive the city
official with respect to the fact, would not be violating the ordinance.
42
that such speech is due constitutional protection, we conclude that the ordinance is not
unduly vague as Smith contends. Smith specifically finds faults with some of the
terminology used in the ordinance, which he describes as vague.
1. Deceit
First, Smith argues that the City’s use of the word “deceit” is vague, and is not
subject to a narrowing construction. Smith contends that the City’s proffered
clarifications, including the definition of deceit located in Civil Code section 1710,
Business and Professions Code section 6128, and CALJIC No. 15.26, are flawed and
only add confusion as to what “deceit” means. We find that the commonsense meaning
of the word “deceit” is sufficient in providing the general public with knowledge of what
is prohibited under the anti-deceit ordinance.
An ordinance is unconstitutionally vague “if it fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits,” or “if it
authorizes or even encourages arbitrary and discriminatory enforcement.” (Hill, supra,
530 U.S. at p. 732.) “[P]erfect clarity and precise guidance have never been required
even of regulations that restrict expressive activity.” (Ward v. Rock Against Racism
(1989) 491 U.S. 781, 794; see also Grayned, supra, 408 U.S. 104.) As previously
discussed, “uncertainty at a statute’s margins will not warrant facial invalidation if it is
clear what the statute proscribes ‘in the vast majority of its intended applications.’ ”
(California Teachers, supra, 271 F.3d at p. 1151.)
Furthermore, many different ordinances and laws have survived facial vagueness
challenges with flexible terms. For example, Grayned, supra, 408 U.S. at pages 107
through 114, upheld an ordinance that prohibited “ ‘any noise or diversion which disturbs
or tends to disturb the peace or good order of [a] school session.’ ” (Id. at p. 108.) In
Hill, supra, 530 U.S. at page 732, the United States Supreme Court upheld a statute
finding that it applied only to those who “ ‘knowingly’ approaches within eight feet of
43
another, without that person’s consent, for the purposes of engaging in oral protest,
education, or counseling,” after noting that “[t]he likelihood that anyone would not
understand any of these common words seems quite remote.” Similarly in Broadrick,
supra, 413 U.S. at page 608, the Supreme Court also noted that though there may be
disputes as to what certain terms in the ordinance may mean, such as “ ‘partisan,’ ” “
‘take part in,’ ” or “ ‘affairs of political parties,’ ” a facial vagueness challenge could not
be sustained. The Ninth Circuit in California Teachers, supra, 271 F.3d at page 1153
also rejected a facial vagueness challenge after determining that any vagueness stemming
from the terms “ ‘curriculum,’ ” “ ‘instruction,’ ” “ ‘nearly all,’ ” and “ ‘overwhelmingly’
” would not chill a substantial amount of legitimate speech. Similarly, the Ninth Circuit
in Gospel Missions of America v. Los Angeles (9th Cir. 2005) 419 F.3d 1042, 1047-1048,
found that the definitions of “charitable” and “solicitation” survived a facial vagueness
challenge. These cases serve to underscore the idea that ordinances need not be explicit
with absolutely no room for interpretation in order to survive a facial vagueness
challenge.
In this instance, we find that the word at issue, “deceit,” is commonly used and
provides people of “ordinary intelligence a reasonable opportunity to know what is
prohibited.” (Grayned, supra, 408 U.S. at p. 108.) “Deceive,” as defined by the Oxford
English Dictionary, means “[t]o ensnare; to take unawares by craft or guile; to overcome,
overreach, or get the better of by trickery; to beguile or betray into mischief or sin; to
mislead,” and also means “[t]o cause to believe what is false, to mislead as to a matter of
fact, lead into error, impose upon, delude, ‘take in.’ ” (Oxford English Dict.
[as of Dec. 17, 2013].) “Deceive,” as used in
the anti-deceit ordinance, is also further clarified by the ordinance’s requirement that the
deceit must be intentional. Given the commonsense meaning of intentional deceit, it
seems clear that the ordinance is meant to target falsehoods that the speaker knows to be
44
false. The anti-deceit ordinance does not serve, on its face, to punish or restrict
individuals from freely speaking their minds with respect to issues or facts they believe to
be true, but turn out to be false. Such an act does not fulfill the ordinance’s requirement
that there be an intent to deceive.
Facial vagueness challenges to an ordinance will fail if “it is ‘clear what the
ordinance as a whole prohibits.’ ” (Human Life of Washington, supra, 624 F.3d at p.
1021.) We find that the wording of the statute is clear enough in that an ordinary person
would know what the ordinance as a whole prohibits. We reiterate that since we are
“[c]ondemned to the use of words, we can never expect mathematical certainty from our
language.” (Grayned, supra, 408 U.S. at p. 110.) Given the entirety of the ordinance and
its related sections, we do not find that the anti-deceit ordinance functions to chill a
substantial amount of legitimate political speech. The target of the anti-deceit ordinance
is intentional deceit. An individual discussing a political issue to a city official would run
afoul of this ordinance only if they seek to intentionally deceive the city official while
engaged in lobbying activity. From the language of the ordinance, an honest
misrepresentation of facts would not be an “intentional deceit.”
Smith is correct that in the proceedings below the City attempted to offer
definitions of “deceit” including the statutory definition provided for in Civil Code
section 1710. Civil Code section 1710 defines deceit in four ways, including: “1. The
suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
[¶] 2. The assertion, as a fact, of that which is not true, by one who has no reasonable
ground for believing it to be true; [¶] 3. The suppression of a fact, by one who is bound to
disclose it, or who gives information of other facts which are likely to mislead for want of
communication of that fact; or, [¶] 4. A promise, made without any intention of
performing it.” Smith argues that the second definition of “deceit” in Civil Code section
1710, if used in the context of the anti-deceit ordinance, would forbid speech by a
45
lobbyist who believes the fact is true. The second definition of deceit in Civil Code
section 1710 is that of negligent misrepresentation. However, Smith’s argument fails to
take into account the entirety of the ordinance. The ordinance does not broadly prohibit
“deceit,” but rather forbids intentional deceit. Even if we applied the definition of deceit
found in Civil Code section 1710, the requirement of intent forecloses the hypothetical
situation that Smith proffers.
In addition, we do not find merit in Smith’s speculative argument that the
ordinance itself would also chill the constitutionally protected right to petition. It is true
that SJMC section 12.12.170 defines “lobbying activity” as any act undertaken that is
meant to influence or attempt to influence a city official. This certainly encompasses
constitutionally protected petitioning activity. Nonetheless, the anti-deceit ordinance
does not forbid one from engaging in lobbying activity. It does not prohibit individuals
from sending a letter to a local official to voice their opinion about a project, even if their
opinion is riddled with unintentional falsities and misrepresentations. The anti-deceit
ordinance applies only if an individual engaging in such activity does so with the intent to
deceive. Intentional deceit of a city official is not protected petitioning activity. We may
speculate as to how the application of the anti-deceit ordinance might impact an
individual’s right to petition in certain circumstances.13 However, such “ ‘speculation
about possible vagueness in hypothetical situations not before the Court will not support
a facial attack on a statute when it is surely valid ‘in the vast majority of its intended
applications.’ ” (Hill, supra, 530 U.S. at p. 733.)
13
As previously noted, the exemption provision, SJMC section 12.12.020, would
still apply to the anti-deceit ordinance. Accordingly, those whose activities solely include
the publication or dissemination of news items, editorials, and other commentary directly
or indirectly urging governmental action are not subject to the anti-deceit ordinance. This
exemption provision serves to preclude the ordinance from overreaching and chilling a
substantial amount of protected petitioning activity.
46
2. Attempt
Next, Smith argues that the ordinance’s use of the word “attempt” is
unconstitutionally vague. We find no merit in this contention. Smith essentially posits
that since an “attempt” to deceive is disallowed under the ordinance, the ordinance
substantially chills permissible speech. Smith contends that if one only attempts to
deceive a city official, but fails in his or her attempt, no harm has been done to either the
legislative or administrative process. Accordingly, Smith concludes that the inclusion of
the word “attempt” is invalid.
For the same reasons that we found the City’s use of the word “deceit”
appropriate, we find the word “attempt” similarly appropriate. A commonsense meaning
of the word “attempt” makes it clear what the ordinance seeks to control. As defined in
the Oxford English Dictionary, “attempt” means “to try, endeavor, essay.” (Oxford
English Dict. [as of Dec. 17, 2013].)
Furthermore, Smith has not proffered any evidence that would show that an attempt to
deceive a city official is somehow less harmful to the legislative or administrative
process. An attempt to deceive a city official can delay official acts, and can cause harm
by confusing city officials as to pertinent facts related to pending legislation or
administrative actions.
3. Material Fact
Lastly, Smith contends that the ordinance’s use of the phrase “material fact” fails
to adequately narrow the anti-deceit ordinance. We disagree, and find that the common
definition of what constitutes a “material fact” is sufficient. The phrase “material fact” is
not uncommon. In the fraud context, California defines a material fact as a fact that “ ‘a
reasonable man would attach importance to its existence or nonexistence in determining
his choice of action in the transaction in question’ (Rest.2d Torts, § 538, subd. (2)(a);
[citation]).” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 977
47
(Engalla).) “In this context, a fact is material . . . ‘if there is a substantial likelihood that,
under all the circumstances, a reasonable investor would consider it important in reaching
an investment decision.’ Materiality is a question of fact for the jury, ‘unless the “fact
misrepresented is so obviously unimportant that the jury could not reasonably find that a
reasonable man would have been influenced by it.” ’ (Engalla, supra, 15 Cal.4th at p.
977, quoting Rest.2d Torts, § 538, com. e, p. 82.)” (Persson v. Smart Inventions, Inc.
(2005) 125 Cal.App.4th 1141, 1163, fn. omitted.)
Below, the City cited the definition that a fact is material if “ ‘ “it would be likely
to affect the conduct of a reasonable man with reference to the transaction in question.” ’
” (Wood v. Kalbaugh (1974) 39 Cal.App.3d 926, 930.) In the context we are presented
with here, we could therefore conclude that a fact would be considered material if it
would likely affect the conduct of a reasonable city official with reference to the pending
legislative or administrative action. Under this definition, we do not find that the phrase
“material fact” is unconstitutionally vague, as a statute is unconstitutionally vague on its
face only “if it fails to provide people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits,” or “if it authorizes or even encourages arbitrary
and discriminatory enforcement.” (Hill, supra, 530 U.S. at p. 732.) We do not believe
that a person of reasonable intelligence would have difficulty discerning what could be
considered a “material fact” under the ordinance.
IV. Conclusion
The City’s ordinances governing expenditure lobbyists and in-house lobbyists, and
prohibiting the intentional deceit of city officials are not facially unconstitutional.
DISPOSITION
The judgment is affirmed. The City of San Jose is entitled to its costs on appeal.
48
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
49