Yes on Prop B, Committee in Support of the Earthquake Safety and Emergency Response Bond v. City and County of San Francisco ( 2020 )

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 YES ON PROP B, COMMITTEE IN Case No. 20-cv-00630-CRB SUPPORT OF THE EARTHQUAKE 9 SAFETY AND EMERGENCY RESPONSE BOND, et al., ORDER GRANTING IN PART AND 10 DENYING IN PART MOTION FOR Plaintiffs, PRELIMINARY INJUNCTION 11 v. 12 CITY AND COUNTY OF SAN 13 FRANCISCO, 14 Defendant. 15 Yes on Prop B, Committee in Support of the Earthquake Safety and Emergency Response 16 Board, contends that the City and County of San Francisco’s new disclaimer requirements create 17 an unconstitutional burden on its First Amendment right to advocate for earthquake safety. The 18 Court agrees that the disclaimer rules are unconstitutional as applied to some smaller or shorter 19 types of advertising, because they leave effectively no room for pro-earthquake safety messaging. 20 But the rules are not an unconstitutional burden on larger or longer advertising, and requiring the 21 committee to disclose not only its own donors but also the individuals and organizations who give 22 money to committees that in turn support Yes on Prop B is not an unconstitutional forced 23 association or burden on campaign contributions. 24 I. BACKGROUND 25 Under California law, any person or group of people that raises at least $2,000 or spends at 26 least $1,000 for political purposes in a given year must register as a committee. Cal. Gov’t Code 27 § 82013. Political advertising by committees is subject to a plethora of disclaimer and disclosure 1 requirements under California and San Francisco law. See, e.g. Cal. Gov’t Code §§ 84200, 2 84200.5, 84202.3, 84203, 84502; see also, e.g. SF Code § 1.161. 3 This case concerns two new disclaimer requirements for committee advertising that went 4 into effect in San Francisco last year. First, the San Francisco Board of Supervisors amended San 5 Francisco’s Campaign and Governmental Conduct Code to require a spoken disclaimer at the 6 beginning (rather than the end) of any audio or video advertisement. See SF Code § 1.161(a)(5); 7 see also Yes on Prop B RJN1 (dkt. 5-1) Ex. B. 8 Last November, San Francisco voters amended the City’s disclaimer laws by approving 9 Proposition F. See generally Yes on Prop B RJN Ex. C at 112–13. Proposition F passed with 10 76.89% of the vote. San Francisco RJN Ex. B at 6. Now, all ads paid for by “primarily formed” 11 independent expenditure and ballot measure committees2 must include a disclosure identifying the 12 committee’s top three donors of $5,000 or more. If one of those contributors is itself a committee, 13 the ad must also disclose that committee’s top two donors of $5,000 or more in the last five 14 months. In all ads other than audio ads, the names of both primary and secondary contributors 15 must be followed by the amount of money they contributed. Id.; SF Code § 1.161(a)(1), (5). On 16 written ads, the disclosure must be in 14-point font (rather than 12-point font, which was the case 17 before Proposition F). RJN Ex. C at 112; SF Code § 1.161(a)(3). 18 Yes on Prop B is a “primarily formed committee” which supports Proposition B.3 David 19 Decl. (dkt. 5-5) ¶ 6. Yes on Prop B has received $5,000 in funding from each of three other 20 committees: Yes on A, Affordable Housing for San Franciscans Now!, the Edwin M. Lee 21 Democratic Club Political Action Committee, and the United Democratic Club of San Francisco. 22 1 Yes on Prop B’s request for judicial notice is unopposed and asks for notice of three documents 23 made publicly available by San Francisco or the State of California. Because these documents come from sources whose accuracy cannot reasonably be questioned, Yes on Prop B’s request is 24 granted. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010). San Francisco has also requested that the Court notice publicly available documents, plus a municipal 25 ordinance. San Francisco RJN (dkt. 20). San Francisco’s request is also granted. See id.; see also Tollis, Inc. v. Cty. of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007). Finally, the unopposed 26 motion to file an amicus curiae brief (dkt. 24) is granted. See also Statement of Non-Opposition (dkt. 26). 27 2 A “primarily formed” committee is one created to support or oppose a single candidate or 1 Id. ¶ 12. Yes on Prop B wishes to spend its modest budget on cost-effective forms of advertising, 2 including six-, fifteen-, and thirty-second digital video advertisements, yard or window signs, and 3 Chinese language newspaper ads. Id. ¶ 29, Mot. (dkt. 5) at 1. 4 Those ads will be subject to Proposition F’s new disclaimer requirements. Yes on 5 Prop B’s video ads must include the following disclaimer, spoken at the beginning of the video: 6 Ad paid for by Yes on Prop B, Committee in support of the Earthquake Safety and Emergency Response Bond. Committee 7 major funding from: 1. United Democratic Club of San Francisco – contributors include San Francisco Association of Realtors, 8 Committee on Jobs Government Reform Fund; 2. Edwin M. Lee Democratic Club Political Action Committee – contributors include 9 Committee on Jobs Government Reform Fund; 3. Yes on A, Affordable Homes for San Franciscans Now! – contributors include 10 Salesforce.com, Inc., Chris Larsen. Financial disclosures are available at sfethics.org. 11 Muir Decl. (dkt. 5-3) ¶ 34. That disclaimer takes roughly twenty-eight seconds to read “in a 12 clearly spoken manner and in a pitch and tone substantially similar to the rest of a typical 13 television advertisement.” Id. ¶ 35. 14 Print ads must include the following disclosure: 15 Ad paid for by Yes on Prop B, Committee in Support of the 16 Earthquake Safety and Emergency Response Bond. Committee major funding from: 1. United Democratic Club of San Francisco 17 ($5,000) – contributors include San Francisco Association of Realtors ($6,500), Committee on Jobs Government Reform Fund 18 ($5,000), 2. Edwin M. Lee Democratic Club Political Action Committee ($5,000) – contributors include Committee on Jobs 19 Government Reform Fund ($5,000), 3. Yes on A, Affordable Homes for San Franciscans Now! ($5,000) – contributors include 20 Salesforce.com, Inc. ($300,000), Chris Larsen ($250,000) Financial disclosures are available at sfethics.org. 21 Id. Ex. 1. That disclosure, when printed in size 14-point font, takes up 100% of the most common 22 and economical ads printed in Chinese language newspapers (so-called “ear” ads), 75 to 80% of a 23 5” by 5” ad, and 31 to 33% of a 5” by 10” ad. Id. ¶¶ 66–67. It occupies approximately 35% of a 24 typical 14” by 22” horizontal window sign, id. ¶¶ 58, 61, and approximately 35 to 38% of one side 25 of a typical 5.5” by 8.5” palm card, id. ¶¶ 52–53. 26 Yes on Prop B seeks a preliminary injunction “prohibiting defendant the City and County 27 of San Francisco and its officers, agents, divisions, commissions, and all persons acting under or 1 in concert with it, from enforcing the spoken disclaimer rule in San Francisco Campaign & 2 Governmental Conduct Code Section 1.161(a)(5) and amendments to Section 1.161 imposed by 3 Proposition F.” Mot. at 1. 4 II. LEGAL STANDARD 5 A preliminary injunction is an “extraordinary remedy” that should only be awarded upon a 6 clear showing that the plaintiff is entitled to such relief. See Winter v. Natural Res. Def. Council, 7 Inc., 555 U.S. 7, 22 (2008). The party seeking a preliminary injunction must establish: (1) a 8 likelihood of success on the merits; (2) a likelihood of irreparable harm absent preliminary relief; 9 (3) that the balance of equities tips in the plaintiff’s favor; and (4) that an injunction is in the 10 public interest. See id. at 20. Alternatively, the moving party must demonstrate that “serious 11 questions going to the merits were raised and the balance of hardships tips sharply in the 12 plaintiff’s favor,” and that the other two Winter elements are met. Alliance for Wild Rockies v. 13 Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). The “[l]ikelihood of success on the merits is the 14 most important Winter factor.” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 15 2017) (internal quotation marks omitted). It is Yes on Prop B’s burden to establish each of the 16 four Winter elements, but San Francisco’s burden to demonstrate Proposition F’s constitutionality. 17 Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009). 18 III. DISCUSSION 19 Yes on Prop B presents two theories of Proposition F’s constitutional infirmity: that the 20 disclaimer requirements are so lengthy they impose an undue burden on political speech and that 21 requiring Yes on Prop B to disclose its secondary contributors unconstitutionally forces it to 22 associate with those entities and impermissibly chills political contributions. See Mot. at 1–2. 23 This order evaluates the likelihood of success on each theory, before analyzing whether the 24 standard for a facial challenge has been satisfied and discussing the other three Winter factors. 25 A. Constitutional Standard 26 As a preliminary matter, the parties dispute the appropriate standard for evaluating 27 1 the ability to speak, but . . . do not prevent anyone from speaking,” they are subject to “exacting 2 scrutiny.”4 Citizens United v. FEC, 558 U.S. 310, 366 (2010). This standard “requires a 3 ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ 4 governmental interest.” Id. at 366–67. “[T]he strength of the governmental interest must reflect 5 the seriousness of the actual burden on First Amendment rights.” Davis v. FEC, 554 U.S. 724, 6 744 (2008). 7 Yes on Prop B nonetheless contends the Court should apply strict scrutiny, because “the 8 Supreme Court has avoided applying these standards in a mechanical manner, particularly when a 9 regulation appears on its face to fit within on[e] category, but has broader First Amendment 10 implications.” Mot. at 10. Neither of the cases Yes on Prop B cites for this proposition is on 11 point. Both involved laws that effectively penalized candidates who expended more than a 12 threshold amount of personal funds, by raising contribution limits or providing public funds for 13 their opponents. See Davis, 554 U.S. at 738–40; Ariz. Free Enter. Club’s Freedom Club PAC v. 14 Bennett, 564 U.S. 721, 736–37 (2011). The Court applied strict scrutiny to these schemes, 15 because they constituted an “unprecedented penalty” on campaign expenditures. Davis, 554 U.S. 16 at 739. 17 Yes on Prop B does not cite a case which employed this logic to subject disclosure or 18 disclaimer requirements to strict scrutiny. Even if the logic of Davis and Bennett could be 19 extended to the disclaimer and disclosure context, for the reasons explained below, most 20 applications of Proposition F do not impose such “a special and significant burden” on First 21 Amendment rights that strict scrutiny would apply. Cf. Davis, 554 U.S. at 739. The only possible 22 exception is its application to smaller or shorter advertisements that are completely occupied by 23 the required disclaimers. As explained below, that application of Proposition F is unconstitutional 24 25 4 Before the Supreme Court clarified that disclaimer and disclosure requirements are subject to exacting scrutiny, some courts subjected these laws to strict scrutiny. See, e.g. Cal. Republican 26 Party v. Fair Political Practices Comm’n, No. CIV-S-04-2144 FCD PAN, 2004 U.S. Dist. LEXIS 22160, at *13 (E.D. Cal. Oct. 27, 2004). This approach is no longer good law. See Human Life of 27 Wash., Inc. v. Brumsickle, 624 F.3d 990, 1013 (9th Cir. 2010) (“[T]he Supreme Court has made 1 regardless of the standard of review. For the reasons explained above, the Court will subject all 2 other applications of the law to exacting scrutiny. 3 B. Burden on Speech 4 Yes on Prop B’s first theory of Proposition F’s constitutional infirmity is that the 5 disclaimer requirements “are so long and cumbersome” that they leave no room for political 6 advertising’s political message. Mot. at 13–17. The merits of this argument depend to some 7 extent on the type of ad. The smaller or shorter the ad, the greater the burden. This section 8 therefore proceeds by considering two categories of Yes on Prop B’s proposed advertisements: 9 those in which the required disclaimers take up more than 40% of the ad and those in which the 10 required disclaimers take up 40% or less of the ad. 11 1. Yes on Prop B’s proposed 5” by 5” newspaper advertisements, smaller 12 “ear” advertisements, and digital/audio advertisements of 30 seconds or 13 less. 14 San Francisco agrees that when Proposition F’s disclaimers take up more than 40% of the 15 space or run time of a given ad they impose an unconstitutional burden on political speech. Opp’n 16 (dkt. 18) at 4. Both parties have called for the Court to enjoin Proposition F’s application where 17 its disclaimer requirements will occupy more than 40% of a given Yes on Prop B advertisement. 18 Id. at 24; Mot. at 1. The Court agrees that such an injunction is necessary. 19 Yes on Prop B’s required disclaimers consume 75 to 100% of 5” by 5” newspaper 20 advertisements, smaller “ear” advertisements, and digital/audio advertisements 30 seconds or less 21 in length. Muir Decl. ¶¶ 36, 67. Proposition F virtually forecloses the use of these ads, because 22 the mandated disclaimers leave little or no room for the political message. This is especially 23 troubling because the burden is greatest for some of the most cost-effective types of advertising. 24 David Decl. ¶¶ 28–30. Perversely, a law intended to reveal the influence of money in politics may 25 have the unintended result of severely hampering the political speech of underfunded committees. 26 The First Amendment cannot tolerate a law that, as a practical matter, forecloses certain forms of 27 political speech and requires Yes on Prop B to expend precious funds on more expensive 1 advertising or forgo its political expression altogether. Cf. Buckley v. Valeo, 424 U.S. 1, 17–19 2 (1976) (“substantial . . . restraints on the quantity and diversity of political speech” are 3 unconstitutional). The burden Proposition F imposes on these forms of advertising is 4 unconstitutional whether it is reviewed under strict or exacting scrutiny. 5 Because Yes on Prop B has shown a likelihood of success on the merits of this issue, it has 6 also demonstrated that the other Winter factors weigh in favor of a preliminary injunction. First 7 Amendment violations constitute irreparable harm and demonstrate that the balance of hardships 8 tips in the plaintiff’s favor. Am. Beverage Ass’n v. City & Cty. of San Francisco, 916 F.3d 749, 9 758 (9th Cir. 2019). There is also a strong public interest in avoiding constitutional violations. Id. 10 2. Yes on Prop B’s other proposed advertisements. 11 Larger and longer advertisements present a different case, which the rest of this section 12 evaluates under the exacting scrutiny framework. 13 a. Governmental interest. 14 The Ninth Circuit has recognized that in the referendum context, where “voters act as 15 legislators, the government has a vital interest in providing the public with information about who 16 is trying to sway its opinion.” Brumsickle, 624 F.3d at 1017 (internal alterations and citations 17 omitted). “Given the complex detail involved in ballot initiatives, and the sheer volume of 18 relevant information confronting voters, voters cannot be expected to make such a determination 19 on their own.” Id. Disclaimer and disclosure requirements that help “voters . . . determine who is 20 behind the advertisements seeking to shape their views” therefore serve a “sufficiently important” 21 governmental interest. Id. at 1017–18. 22 Yes on Prop B argues that San Francisco has failed to offer any justification for the new 23 formatting rules “[o]ther than boiler-plate statements about the need for more disclosure.” Mot. at 24 17. It contends that without more specific arguments or a “factual record” demonstrating “why it 25 is now necessary for disclaimers to be spoken at the beginning of audio and digital ads, and why 26 print disclaimers must be so much bigger,” San Francisco cannot demonstrate an important 27 governmental interest. Id.; see also Reply (dkt. 22) at 6 (“The City has provided no evidence or 1 rationale as to why disclaimers on print ads had to change from 12-point font to 14-point font, or 2 why an entire disclaimer must be spoken for all audio and video ads instead of just identifying the 3 sponsor.”). But “[t]he quantum of empirical evidence needed to satisfy heightened judicial 4 scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the 5 justification raised.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000). It is hardly 6 novel or implausible to suggest that the informational interest described above is better served by 7 more noticeable, easier-to-read font or more obvious, difficult to ignore, and complete disclaimers. 8 b. First Amendment burden. 9 The next question is whether this interest “reflect[s] the seriousness of the actual burden on 10 First Amendment rights.” Davis, 554 U.S. at 744. San Francisco argues it must, because the 11 Supreme Court has upheld a four-second disclaimer requirement as applied to a ten-second 12 advertisement. Opp’n at 8 (citing Citizens United, 558 U.S. at 368). San Francisco concludes that 13 “the Supreme Court [has] recognized that disclaimers that take 40% of advertising space satisfy 14 exacting scrutiny.” Id. 15 The Court declines the invitation to establish a bright-line rule that disclaimer requirements 16 are not unduly burdensome so long as they consume no more than 40% of a political 17 advertisement. The burden imposed by a given disclaimer will vary depending on the type of 18 disclaimer, relevant advertisement, and various other case-specific factors. For instance, the four- 19 second disclaimer in Citizens United had to be displayed, not spoken. 558 U.S. at 366. It was 20 accompanied by a spoken disclaimer that was considerably shorter than the one required by 21 Proposition F. Id. Yes on Prop B suggests this disclaimer format is less burdensome than a 22 spoken disclaimer lasting for a comparable percentage of the ad. Reply at 2. That may be true for 23 some ads, but not for others. In any event, the Court is convinced that the extent of the burden on 24 First Amendment activity will depend on facts other than the percentage of ad forfeited to a 25 disclaimer. A bright-line, 40% rule would lead to absurd results. Id. at 6. 26 That being said, Citizens United does establish that a disclaimer may commandeer a 27 prominent position in a political ad without offending the First Amendment. That is the case here. 1 With Proposition F’s application to the smaller ads enjoined, its disclaimers will not take up more 2 than approximately 35% of any of Yes on Prop B’s proposed ads. David Decl. ¶¶ 32–33. That 3 leaves almost two-thirds of the ad for Yes on Prop B’s pro-Prop-B messaging. The Court finds 4 that this space is sufficient to communicate Prop B’s political message. See, e.g. Muir Decl. 5 Ex. 1. While the burden imposed by the disclaimer requirements is not insignificant, it is not 6 inappropriate given the important governmental interest at stake. Brumsickle, 624 F.3d at 1017– 7 18. This is especially true because most of the disclaimer’s length is attributable to its content, 8 which is substantially related to San Francisco’s informational interest. See supra Section C.1. 9 Yes on Prop B offers a mathematical formula of its own. It argues the disclaimer 10 requirements must be unduly burdensome, because the Ninth Circuit has struck down a 11 requirement that warnings about the dangers of sugar occupy 20% of printed ads for sugar- 12 sweetened beverages. Mot. at 13–14 (citing Am. Beverage Assoc., 916 F.3d at 756). But 13 American Beverage Association is distinguishable, because it applied a different standard to a 14 different type of speech. 15 The Ninth Circuit evaluated the sugar warning under the Zauderer test, which applies to 16 “required warnings on commercial products,” and asks, inter alia, whether the mandatory 17 disclaimer is “unjustified or unduly burdensome.” Am. Beverage Assoc., 916 F.3d at 756. 18 American Beverage Association concluded San Francisco had failed to meet its burden of showing 19 that the sugar warning was not unjustified or unduly burdensome, because “the record here shows 20 that a smaller warning—half the size—would accomplish Defendant’s stated goals.” Id. at 757. 21 Specifically, a study in the record suggested that a smaller warning would still reduce 22 consumption of sugary beverages and improve consumers’ awareness of such beverages’ dangers. 23 Id. The Ninth Circuit acknowledged that in other circumstances, a more prominent disclaimer 24 might be warranted. Id. (“To be clear, we do not hold that a warning occupying 10% of product 25 labels or advertisements necessarily is valid, nor do we hold that a warning occupying more than 26 10% of product labels or advertisements necessarily is invalid.”). There is no similar empirical 27 evidence in the record here, and the fact that the content of the challenged disclaimer is a major 1 The applicable constitutional standard is another distinguishing factor. Exacting scrutiny, 2 not the Zauderer test, applies in this case. Yes on Prop B oversimplifies when it argues that 3 American Beverage Association necessarily controls the result here because political speech 4 enjoys greater protection than commercial speech. Mot. at 14. It ignores the factual distinctions 5 between these cases, and the fact that the political context raises concerns not present in a 6 commercial speech case. The referendum context implicates the important governmental interest 7 in informing voters about who is paying for political advertising. Brumsickle, 624 F.3d at 1017– 8 18. 9 Finally, San Francisco has taken the position that Proposition F does not mandate 10 disclaimers for live telephone calls. Opp’n at 2 n.2. Given that representation the Court need not 11 decide whether the disclaimer requirements are constitutional when applied to this form of 12 advertising.5 13 C. Secondary Contributor Disclosure Requirements 14 Yes on Prop B also argues that the secondary contributor disclosure requirements are 15 unconstitutional, regardless of the format they appear in. 16 1. Governmental interest. 17 As explained above, the governmental interest in helping “voters . . . determine who is 18 behind the advertisements seeking to shape their views” is “sufficiently important.” Brumsickle, 19 624 F.3d at 1017–18. 20 Yes on Prop B argues that “the relationship between the secondary contributor and the 21 ultimate speaker is far too attenuated” to demonstrate a substantial relation between the disclosure 22 requirement and the informational interest. Mot. at 22. But “individuals and entities interested in 23 funding election-related speech often join together in ad hoc organizations with creative but 24 25 5 In any case, the Court agrees with San Francisco’s interpretation of the applicable requirements. Yes on Prop B argues Proposition F applies to live phone calls because “[t]he City ordinance 26 cross-references the Political Reform Act which, in turn, defines ‘advertisement’ broadly as ‘any general or public communication that is authorized and paid for by a committee for the purpose of 27 supporting or opposing . . . a ballot measure.” Reply at 2 n.1 (citing Cal. Gov’t Code 1 misleading names.” ACLU v. Heller, 378 F.3d 979, 994 (9th Cir. 2004). As the Ninth Circuit has 2 recognized, “reporting and disclosure requirements can expose the actual contributors to such 3 groups and thereby provide useful information concerning the interests supporting or opposing a 4 ballot proposition,” when “simply supplying the name . . . of the organization . . . does not provide 5 useful information.” Id. 6 These observations explain the utility of the secondary contributor disclosures. If Yes on 7 Prop B only revealed that it had received funding from the United Democratic Club of San 8 Francisco, that would not be particularly revealing. The fact that the United Democratic Club of 9 San Francisco received substantial funding from the San Francisco Association of Realtors and the 10 Committee on Jobs Government Reform Fund is helpful to voters in understanding “the interests 11 supporting” the Club, see id., and therefore “who is behind the advertisements seeking to shape 12 their views.” Brumsickle, 624 F.3d at 1017–18. The secondary contributor disclosure 13 requirements effectuate the interests served by the primary disclosure requirements, by helping 14 voters understand who the primary contributors actually are. 15 The persuasive precedent Yes on Prop B cites in support of its position is distinguishable. 16 Citizens Union of New York v. Attorney General of New York, 408 F. Supp. 3d 478 (S.D.N.Y. 17 2019), struck down as unconstitutional a law that required 501(c)(3) non-profit organizations to 18 disclose the identities of donors that gave more than $2,500 if the non-profit itself gave more than 19 $2,500 to a 501(c)(4) organization engaged in lobbying. Id. at 504. The court concluded that 20 “[t]he link between a 501(c)(3) donor and the content of lobbying communications by the 21 501(c)(4) is too attenuated to effectively advance any informational interest.” Id. at 505. But this 22 conclusion depended on the unique nature of a 501(c)(3), which “by definition cannot engage in 23 substantial lobbying activity.” Id. It made little sense to tie donors to lobbying activities because 24 they made a donation to an organization that could not, by law, engage in substantial lobbying 25 activity. Id. That is not the case here—none of the relevant parties are 501(c)(3)s. 26 Yes on Prop B also argues that the secondary contributor disclaimers are unnecessary, 27 because other disclosure laws require that most of this information be made publicly available 1 withstand constitutional muster if all it did was provide information that was already on the 2 internet. But the Supreme Court has approved disclaimer requirements that were at least partially 3 redundant of reporting requirements. Citizens United, 558 U.S. at 366. 4 True, the Ninth Circuit has suggested that because disclaimer requirements “affect the 5 content of the communication itself” they are more constitutionally suspect than laws that 6 “requir[e] the reporting of funds used to finance speech.” Heller, 378 F.3d at 987. But it has also 7 upheld disclaimer requirements for political advertising as an appropriate means of furthering the 8 government’s interest in informing voters “who or what entity is trying to persuade them to vote in 9 a certain way.” Yamada v. Snipes, 786 F.3d 1182, 1203 n.14 (9th Cir. 2015). And it has 10 recognized that the voting public “cannot be expected to explore the myriad pressures to which 11 they are regularly subjected” and may “render a decision based upon a thirty-second sound bite 12 they hear the day before the election.” Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 13 1106 (9th Cir. 2003). The government may therefore constitutionally “provide[ ] its voters with a 14 useful shorthand for evaluating the speaker behind the sound bite.” Id. The secondary contributor 15 disclaimers provide voters with the necessary information at the time they hear (or see) the “sound 16 bite” and without having to independently “explore the myriad pressures to which they are 17 regularly subjected.” See id. That is why they further a sufficiently important governmental 18 interest. 19 2. First Amendment burden. 20 Yes on Prop B offers two theories of the secondary contributor disclaimer requirement’s 21 burden on First Amendment rights. First, that the requirement infringes on the committee’s 22 associational rights, and second that it impermissibly chills political contributions. 23 a. Associational rights. 24 According to Yes on Prop B, the secondary contributor disclaimers are a form of 25 unconstitutional forced association because they “requir[e] that plaintiffs display on the face of 26 every political communication the names and contribution amounts of secondary contributors with 27 whom they have not associated” and “force[ ] the Committee to credit these secondary 1 contributors as endorsers of that message, regardless of whether that is actually true.” Mot. at 18. 2 In support of this argument, Yes on Prop B cites cases like Janus v. American Federation of State, 3 County, and Municipal Employees, 138 S. Ct. 2448 (2018), for the proposition that the First 4 Amendment guarantees the right not to associate. Mot. at 19. But Janus and its ilk are 5 distinguishable, because Yes on Prop B is not being forced to associate with anyone. It is not, for 6 example, being forced to fund speech it disagrees with. Cf. Janus, 138 S. Ct. at 2459–60. What it 7 is required to do is accurately report that it has chosen to associate, at least indirectly, with certain 8 organizations and individuals by taking money from groups they support financially. 9 Yes on Prop B’s argument reduces to a theory of forced association by way of confusion. 10 Yes on Prop B thinks it is being forced to associate with its secondary contributors because the 11 disclaimers will confuse voters into believing that Yes on Prop B is more closely associated with 12 its secondary contributors than it actually is. See Mot. at 17 (“Prop. F requires that the Committee 13 identify on the face of its political messages, individuals and entities that they have not associated 14 with, information that will ultimately confuse and misinform the electorate.”); see also id. at 21 15 (“[B]y requiring the names of secondary contributors to appear on the political communications of 16 a third-party to whom they have not contributed, Prop. F implies to the voting public that those 17 secondary contributors knew, approved, and directed their money to fund the third party’s 18 communication.”). 19 Yes on Prop B’s problem is that the Supreme Court has flatly rejected a virtually identical 20 voter confusion theory of association. Washington State Grange v. Washington State Republican 21 Party, 552 U.S. 442 (2008), upheld a Washington state law that dictated that elections for “partisan 22 offices” should occur “in two stages: a primary and a general election.” Id. at 447. Candidates 23 declared their “party preference, or independent status” in the primary. Id. Political parties could 24 not “prevent a candidate who [was] unaffiliated with, or even repugnant to, the party from 25 designating it as his party of preference.” Id. The top two vote-getters in the primary advanced to 26 the general election, maintaining the party preference they declared at the primary stage. Id. at 27 447–48. 1 associational rights because voters [would] assume that candidates on the general election ballot 2 [were] the nominees of their preferred parties.” Id. at 454. The Court held that relying “on the 3 possibility that voters will be confused as to the meaning of the party preference designation” was 4 “sheer speculation” and “the fatal flaw in [the Republican Party’s] argument.” Id. The Supreme 5 Court concluded that its case law “reflect[ed] a greater faith in the ability of individual voters to 6 inform themselves about campaign issues.” Id. There was “simply no basis to presume that” 7 voters would misunderstand the import of the party preference designation. Id. This was 8 “especially true” because “it was the voters of Washington themselves, rather than their elected 9 representatives, who enacted” the relevant law. Id. at 455. 10 So too here. There is simply no reason to presume San Francisco voters will 11 misunderstand the import of the very disclaimers they voted to require. The only evidence Yes on 12 Prop B posits to the contrary is a single sentence in Margaret Muir’s declaration that “recipients of 13 campaign communications perceive that a person listed as a funding source on that 14 communication is associated with the message sought to be conveyed.” Muir Decl. ¶ 18. Even 15 assuming this statement is accurate and admissible, it does not establish Yes on Prop B’s 16 contention that voters will mistakenly believe the secondary contributors are more closely 17 associated with the pro-Proposition B message than is true. Voters may accurately determine that 18 secondary contributors are associated with Yes on Prop B because they financially support 19 organizations that support Yes on Prop B. But, as the Supreme Court has recognized, there is 20 simply no reason to believe voters will be deceived into believing that a closer association exists 21 by the very disclaimers they voted to require. 22 Yes on Prop B relies on California Republican Party v. Fair Political Practices 23 Commission as support for its voter-confusion theory of forced association, but that unpublished 24 case is unpersuasive here for three reasons. First, the court in Fair Political Practices applied strict 25 scrutiny, 2004 U.S. Dist. LEXIS 22160, at *13–14, which the Ninth Circuit has since determined 26 “set[s] the bar too high” in cases concerning disclaimer and disclosure requirements, Brumsickle, 27 624 F.3d at 1013. 1 any committee paying for an advertisement supporting or opposing a ballot measure identify on 2 the face of the advertisement the committee’s two largest contributors of $50,000 or more.” Fair 3 Pol. Practices Comm’n, 2004 U.S. Dist. LEXIS 22160, at *3. The court enjoined application of 4 that requirement to political party committees. Id. at *23. But that result rested on the unique 5 nature of political parties. The court reasoned that it was unnecessary to disclose a political 6 party’s financial backers, because “[i]n the context of political parties, the true ‘speaker’ is the 7 political party.” Id. at *18. In contrast, the court recognized that “primarily formed committees” 8 might be “ad hoc organizations with creative but misleading names.” Id. (citing Heller, 378 F.3d 9 at 994). Disclosing the top financial contributors of primarily formed committees could, therefore, 10 “prove useful at identifying the true ‘speaker,’” and thus further “a compelling interest in 11 unveiling for the voters the true ‘speakers’ behind such an advertisement.” Id. 12 It is true that the result in Fair Political Practices also rested on a theory of association by 13 voter confusion akin to Yes on Prop B’s. The court found it was “not difficult to imagine a 14 situation in which the contributor will be identified as a major donor on an advertisement 15 containing a political message with which the contributor does not agree.” Id. at *19. But this 16 logic also depended in part on the unique nature of political parties. The court noted that 17 “[c]ontributions are made to political parties for many reasons, including agreement with a party’s 18 general philosophy, support of certain platform positions, or simply opposition to the competing 19 party.” Id. at *18–19. And in any event, Fair Political Practices is an unreported decision of 20 another court which predates the Supreme Court’s decision in Washington State Grange. To the 21 extent Fair Political Practices and Washington State Grange conflict, the Supreme Court’s 22 decision must control. 23 b. Chilling effect on donations. 24 Yes on Prop B also complains that the secondary contributor disclosure requirements chill 25 political contributions. Mot. at 20. Its principal officer, Todd David, states that certain would-be 26 contributors have declined to donate due to concerns about having their own contributor’s names 27 listed on the committee’s advertising. See David Decl. ¶ 23–25. Even assuming this claim is true 1 and admissible, the Ninth Circuit has held that the possibility that “individuals who would prefer 2 to remain anonymous [will be deterred] from contributing to a ballot measure committee” 3 establishes only a “modest burden” on First Amendment rights. Family PAC v. McKenna, 685 4 F.3d 800, 806 (9th Cir. 2012) (survey showing that contributors may “think twice” about donating 5 if it would mean publicly disclosing their names and addresses did not show that the disclosure 6 law “actually and meaningfully deter[ed] contributors” and thus established only a “modest 7 burden”). At most, Yes on Prop B’s evidence establishes that the chilling effect on campaign 8 contributions is a modest burden reasonably related to the important informational interest 9 discussed above. 10 D. Facial Challenge 11 Yes on Prop B seeks a preliminary injunction blocking all enforcement of Proposition F. 12 Mot. at 1. Because this relief would “reach beyond the particular circumstances of these 13 plaintiffs,” Yes on Prop B must “satisfy [the] standards for a facial challenge.” John Doe No. 1 v. 14 Reed, 561 U.S. 186, 194 (2010). To do this, it must at least show that a “substantial number of 15 [Proposition F’s] applications are unconstitutional, judged in relation to the statute’s plainly 16 legitimate sweep.” Wash. State Grange, 552 U.S. at 450 n.6 (internal quotation marks omitted). 17 Yes on Prop B’s burden is heavy, because “[f]acial challenges are disfavored.” Id. at 450. 18 Yes on Prop B has failed to meet its heavy burden. As discussed above, it has not even 19 shown that Proposition F is unconstitutional as applied to all of Yes on Prop B’s proposed 20 advertising. It offers no evidence or argument that Proposition F is generally unconstitutional in 21 its application to the numerous other advertising for and against ballot measures in San Francisco. 22 Its arguments are tailored to its own disclosures (the content of which varies by committee) and 23 advertising. See generally Mot. The injunction issued by this Order applies only to 24 Proposition F’s enforcement against Yes on Prop B. 25 Rather than addressing the standard for a facial challenge, Yes on Prop B argues that 26 enjoining the law only as applied to its own advertisements will confuse other committees, chill 27 speech, and lead to needless repeat litigation. Reply at 14–15. The risk of confusion and repeat 1 litigation is irrelevant to the standard for a facial challenge. See Wash. State Grange, 552 □□□□ at 2 || 450n.6. The possibility of a chilling effect is necessarily tied up in the merits and does not 3 || warrant a broader injunction for the reasons explained above. 4 Yes on Prop B also cites Citizens United to suggest that facial review is preferable to an 5 || as-applied challenge in these circumstances. Reply at 15. The Court’s determination that facial 6 || review was appropriate in that case rested on its conclusion that “a statute which chills speech can 7 and must be invalidated where its facial invalidity has been demonstrated.” Citizens United, 558 8 || U.S. at 336 (emphasis added). Therein lies the crucial distinction: Yes on Prop B has not 9 || demonstrated Proposition F’s facial invalidity. E. Other Winter Factors The “most important” Winter factor, likelihood of success on the merits, favors San 3 Francisco. VidAngel, 869 F.3d at 856. Yes on Prop B’s arguments that the other Winter factors o weigh in its favor rely on its position that it has demonstrated a likelihood of success on the merits. See Mot. at 23—24. Yes on Prop B has therefore failed to demonstrate that any of the Winter factors weigh in favor of a preliminary injunction. wa IV. CONCLUSION 17 5 The City and County of San Francisco are enjoined from enforcing the disclaimer laws Z 418 adopted through Proposition F against Yes on Prop B’s proposed 5” by 5” newspaper 19 advertisements, smaller “ear” advertisements, and spoken disclaimers on digital or audio 20 advertisements of thirty seconds or less. Yes on Prop B’s requested injunctive relief is otherwise 21 denied. 22 IT ISSO ORDERED. 23 Dated: February 20, 2020 24 CHARLES R. BREYER United States District Judge 26 27 28