THOMAS A. WILLIS, ANDREW HARRIS WERBROCK,...ANDREW HARRIS WERBROCK, State Bar No. 304509 KRISTEN MAH...

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NOTICE OF MOT. & MOT. FOR PRELIM. INJ.;

MEM. OF P’S & A’S – NO. 3:20-cv-00630

THOMAS A. WILLIS, State Bar No. 160989 ANDREW HARRIS WERBROCK, State Bar No. 304509 KRISTEN MAH ROGERS, State Bar No. 274672 OLSON REMCHO, LLP 1901 Harrison Street, Suite 1550 Oakland, CA 94612 Phone: (510) 346-6200 Email: [email protected] JESSE MAINARDI, State Bar No. 215591 MAINARDI LAW 315 Montgomery Street, 9th Floor San Francisco, CA 94104 Phone: (415) 735-1649 Email: [email protected] Attorneys for Plaintiffs Yes on Prop B, Committee in Support of the Earthquake Safety and Emergency Response Bond and Todd David

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

YES ON PROP B, COMMITTEE IN SUPPORT OF THE EARTHQUAKE SAFETY AND EMERGENCY RESPONSE BOND and TODD DAVID,

Plaintiffs, vs. CITY AND COUNTY OF SAN FRANCISCO,

Defendants.

No.: 3:20-cv-00630 NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES

Hearing: Date: TBD Time: TBD Crtrm.: TBD Judge: TBD

Case 3:20-cv-00630-CRB Document 5 Filed 01/28/20 of 32

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TABLE OF CONTENTS

Page(s)


MEM. OF P’S & A’S – NO. 3:20-cv-00630

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TABLE OF AUTHORITIES ............................................................................................................... iii

NOTICE OF MOTION AND MOTION .............................................................................................. 1

MEMORANDUM OF POINTS AND AUTHORITIES ...................................................................... 1

INTRODUCTION ................................................................................................................................ 1

FACTUAL BACKGROUND .............................................................................................................. 2

I. CALIFORNIA’S COMPREHENSIVE DISCLOSURE AND DISCLAIMER LAWS ....................................................................................................................................... 2

A. State Disclosure Laws .................................................................................................. 3

B. State Disclaimer Laws .................................................................................................. 4

II. SAN FRANCISCO’S COMPREHENSIVE DISCLAIMER LAWS ....................................... 5

A. San Francisco’s General Disclaimer Laws ................................................................... 5

B. San Francisco’s New Disclaimer Laws ........................................................................ 5

C. The Effect of the City’s New Disclaimer Laws ........................................................... 6

1. Video (television, YouTube, Facebook, and other digital platforms) ..................................................................................... 6

2. Radio (including streaming or digital radio) and phone calls .......................... 7

3. Print (mailers, flyers, doorhangers, newspaper ads, etc.) ................................. 7

4. Oversize Print (yard signs, billboards, etc.) ..................................................... 8

D. Criminal, Civil, and Administrative Penalties for Violating Proposition F ................................................................................................................ 8

III. PLAINTIFFS’ POLITICAL SPEECH ..................................................................................... 8

LEGAL STANDARD .......................................................................................................................... 9

ARGUMENT ....................................................................................................................................... 9

I. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS ............................................ 9

A. The City’s New Disclaimer Laws Are Unconstitutional Under Strict Scrutiny ............................................................................................................... 9

B. Even Under Exacting Scrutiny, The City’s Disclaimer Requirements Unduly Burden Speech and Are Unconstitutional ..................................................... 12


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MEM. OF P’S & A’S – NO. 3:20-cv-00630

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C. The New Disclaimer Laws’ Timing and Format Requirements Unduly Burden Speech and Are Unconstitutional ..................................................... 13

1. The City’s new disclaimer laws impose a severe burden on speech ........................................................................................................ 13

2. The City cannot provide a sufficiently important governmental interest to justify the new disclaimer formatting rules ................................... 17

D. The Secondary Contributor Disclosure Requirement Does Not Withstand Exacting Scrutiny ...................................................................................... 17

1. Proposition F’s secondary contributor rule imposes a severe burden on speech ............................................................................................ 17

2. The City cannot provide a sufficiently important governmental interest to justify the new secondary contributor rule .................................... 20

II. THE REMAINING EQUITABLE FACTORS WEIGH HEAVILY IN PLAINTIFFS’ FAVOR .......................................................................................................... 23

CONCLUSION .................................................................................................................................. 24


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MEM. OF P’S & A’S – NO. 3:20-cv-00630

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CASES:

Alliance for the Wild Rockies v. Cottrell, .................................................................................................9 632 F.3d 1127 (9th Cir. 2011)

American Beverage Association v. City and County of San Francisco, ................................2, 13, 14, 18 916 F.3d 749 (9th Cir. 2019)

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, ...........................................................11 564 U.S. 721 (2011)

Buckley v. Valeo, ................................................................................................................................9, 10 424 U.S. 1 (1976)

California Republican Party v. Fair Political Practices Commission, ..................................................18 No. CIV-S-04-2144, 2004 U.S. Dist. LEXIS 22160 (E.D. Cal. Oct. 27, 2004)

Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, ................................................11 454 U.S. 290 (1981)

Citizens Union of New York v. Attorney General of New York, .......................................................21, 22 408 F. Supp. 3d 478 (S.D.N.Y. 2019)

Citizens United v. Federal Election Commission, .......................................................................... passim 558 U.S. 310 (2010)

Davis v. Federal Election Commission, .....................................................................................10, 11, 12 554 U.S. 724 (2008)

Doe v. Harris, ...................................................................................................................................23, 24 772 F.3d 563 (9th Cir. 2014)

Doe v. Kelly, .............................................................................................................................................9 878 F.3d 710 (9th Cir. 2017)

Doe v. Reed, ............................................................................................................................................22 561 U.S. 186 (2010)

Federal Election Commission v. Wisconsin Right to Life, Inc., .............................................................12 551 U.S. 449 (2007)

First National Bank v. Bellotti, ...............................................................................................................24 435 U.S. 765 (1978)

Human Life of Washington, Inc. v. Brumsickle, ...............................................................................16, 17 624 F.3d 990 (9th Cir. 2010)

Janus v. American Federation of State, County, and Municipal Employees, ........................................19 138 S. Ct. 2448 (2018)

McConnell v. Federal Elections Commission, .......................................................................................20 540 U.S. 93 (2003)


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MEM. OF P’S & A’S – NO. 3:20-cv-00630

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McCutcheon v. Federal Election Commission, ....................................................................10, 11, 12, 13 572 U.S. 185 (2014)

McIntyre v. Ohio Elections Commission, .................................................................................................2 514 U.S. 334 (1995)

Perry v. Schwarzenegger, .......................................................................................................................20 591 F.3d 1147 (9th Cir. 2010)

SpeechNow.org v. Federal Election Commission, .................................................................................11 599 F.3d 686 (D.C. Cir. 2010)

Thalheimer v. City of San Diego, .......................................................................................................9, 23 645 F.3d 1109 (9th Cir. 2011)

Winter v. Natural Resources Defense Council, Inc., ..........................................................................9, 23 555 U.S. 7 (2008)

Yamada v. Snipes, ...................................................................................................................................17 786 F.3d 1882 (9th Cir. 2015)

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, ................................................13 471 U.S. 626 (1985)

STATUTES:

California Government Code § 82013 ...............................................................................................................................................3 § 82027.5 ............................................................................................................................................3 § 82036 ...............................................................................................................................................3 § 82047.5 ............................................................................................................................................3 § 82048.7 ............................................................................................................................................4 § 84101 ...............................................................................................................................................3 § 84200 ...............................................................................................................................................3 § 84200.5 ............................................................................................................................................3 § 84202.3 ............................................................................................................................................3 § 84203 ...............................................................................................................................................3 § 84211 ...............................................................................................................................................3 § 84222 ...............................................................................................................................................3 § 84501 ...............................................................................................................................................4 §§ 84501-84506.5 .............................................................................................................................17 §§ 84501-84511 ..................................................................................................................................4 § 84502 ...............................................................................................................................................4 § 84502.2 ............................................................................................................................................4 § 84503 ...............................................................................................................................................4 § 84504 ...........................................................................................................................................4, 7 § 84504.1 ..................................................................................................................................4, 6, 13 § 84504.2 ........................................................................................................................................7, 8 § 84504.3 ............................................................................................................................................4 § 84504.6 ............................................................................................................................................4 § 84509 ...............................................................................................................................................4


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MEM. OF P’S & A’S – NO. 3:20-cv-00630

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MISCELLANEOUS:

Federal Rules of Civil Procedure Rule 65 ................................................................................................................................................9

San Francisco Charter § C3.699.13 ........................................................................................................................................8

San Francisco Code § 1.110 ................................................................................................................................................4 § 1.112 ................................................................................................................................................4 § 1.161 ...................................................................................................................................... passim § 1.170 ..........................................................................................................................................8, 23

San Francisco Ethics Commission Regulations § 1.161-3 .........................................................................................................................................6, 7


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NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE THAT, as requested in plaintiffs’ unopposed motion for an

order shortening time and for the reasons stated therein, on February 18, 2020, or as soon thereafter as

counsel may be heard, in a courtroom to be determined upon assignment of this case to a Judge of the

United States District Court for the Northern District of California, plaintiffs will and hereby do move

the Court under Federal Rule of Civil Procedure 65 and Local Rules 7-1 and 6-2, for a preliminary

injunction prohibiting defendant the City and County of San Francisco and its officers, agents,

divisions, commissions, and all persons acting under or in concert with it, from enforcing the spoken

disclaimer rule in San Francisco Campaign & Governmental Conduct Code Section 1.161(a)(5) and

amendments to Section 1.161 imposed by Proposition F.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiffs are a small ballot measure committee and its principal officer, who wish to

sponsor low-cost but effective voter communications supporting Proposition B, an earthquake safety

and emergency response bond on San Francisco’s March 3, 2020 ballot. Their plan includes short

social media and internet videos (6, 15 and 30 seconds in length), yard signs, and Chinese newspaper

ads. But San Francisco’s recently adopted on-ad disclaimer laws effectively bar them from doing so.

Under those laws, before saying one word of their own political message in those internet videos or in

volunteer phone calls, plaintiffs must say, in its entirety:

Ad paid for by Yes on Prop B, Committee in support of the Earthquake Safety and Emergency Response Bond. Committee major funding from: 1. United Democratic Club of San Francisco – contributors include San Francisco Association of Realtors, Committee on Jobs Government Reform Fund; 2. Edwin M. Lee Democratic Club Political Action Committee – contributors include Committee on Jobs Government Reform Fund; 3. Yes on A, Affordable Homes for San Franciscans Now! – contributors include Salesforce.com, Inc., Chris Larsen. Financial disclosures are available at sfethics.org.

That takes 28 seconds to say, which means plaintiffs are essentially shut out from using

video ads of 30 seconds or less. The required disclaimers for print media are not much better.

Plaintiffs’ disclaimers would consume between 35% and 100% of newspaper ads (depending on size),


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35% of yard/window signs, and 19% of canvassing flyers. See Declaration of Margaret Muir (“Muir

Decl.”), Ex. 1.

This is patently unconstitutional. Just last year, the Ninth Circuit, sitting en banc,

enjoined a San Francisco on-ad disclaimer law requiring a 20% disclaimer because the law was

“unduly burdensome when balanced against the likely burden on protected speech.” Am. Bev. Ass’n v.

City and County of San Francisco, 916 F.3d 749 (9th Cir. 2019). The disclaimer in that case was far

less burdensome than the City’s new political disclaimer laws and operated in an area accorded less

protection than plaintiffs’ core political speech made during an election. “[N]o form of speech is

entitled to greater constitutional protection.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347

(1995).

The disclaimer rules are unconstitutional for an additional reason. On their ads,

plaintiffs must list the names of donors who have not given to Yes on Prop B and have no association

with Yes on Prop B, but rather gave to other contributors of Yes on Prop B. Such information will

confuse and mislead the voters to believing those entities support and are associated with Yes on

Prop B’s political ad. There is no constitutional justification for this unprecedented intrusion on

plaintiffs’ political speech or rights of association.

Plaintiffs urgently request the Court to enjoin San Francisco’s new disclaimer laws

before the March election so they can exercise their constitutional right to communicate with

San Francisco voters about Proposition B.

FACTUAL BACKGROUND

I. CALIFORNIA’S COMPREHENSIVE DISCLOSURE AND DISCLAIMER LAWS

California’s campaign disclosure and disclaimer laws are likely the most comprehensive

in the country, and they require virtually every participant in the political process, even those that

engage in political speech only occasionally, to file campaign reports and include disclaimers on

political adverting.1 Plaintiffs are only challenging San Francisco’s new disclaimer laws but they

1 The term “disclosure requirements” will refer to campaign finance laws that require participants to file public reports disclosing their financial activity and “disclaimer requirements” will refer to rules that require participants to include statements on the face of a political advertisement.


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briefly discuss how those laws fit into the regulatory regime in place before those laws went into effect

and that would remain if the Court granted their requested relief.

A. State Disclosure Laws

Under California law, every person or combination of persons that raises or spends

$2,000 or more for political purposes must register as a committee and file periodic campaign reports

disclosing all contributions received and expenditures made. Cal. Gov’t Code §§ 82013(a), 84101,

84211.2 For contributions aggregating $100 or more from a donor during a reporting period, a

committee must report the date and amount of the contribution, and the name, address, occupation, and

employer (if an individual) of the contributor. Id. § 84211. A committee must also report with

specificity all expenditures aggregating $100 or more, including all contributions to other committees

or candidates, and payments made to employees, consultants, vendors, sub-vendors, and media outlets.

Id.; see Plaintiffs’ Request for Judicial Notice (“RJN”), Ex. A (California’s campaign report for

committees).

For most committees, this activity is reported on an ongoing basis and with increasing

frequency as an election approaches. For example, plaintiff Yes on Prop B must file comprehensive

campaign reports on a quarterly basis and also file two pre-election reports, on the fortieth and twelfth

day before an election. Cal. Gov’t Code §§ 84200, 84200.5, 84202.3. In the 90 days before an

election, it must also report, within 24 hours, any contribution it receives of $1,000 or more. Cal.

Gov’t Code §§ 82036, 84203. Thus, in the weeks leading up to an election, the public has near real-

time access to information about contributions of $1,000 or more received by these committees. It also

2 Recipient committees may be “primarily formed” to support a particular candidate, measure, or group of candidates or measures appearing on the same ballot, or “general purpose committees,” which are committees formed to support more than one candidate or measure. See Cal. Gov’t Code §§ 82047.5, 82027.5. Categories of recipient committees include (1) candidate committees, which are controlled by a candidate for office and usually subject to contribution limits; (2) independent expenditure committees, which support or oppose candidates for office but are not subject to contribution limits because they do not coordinate their expenditures with candidates; (3) ballot measure committees, such as plaintiff Yes on Prop B; and (4) “multipurpose organizations,” which are nonprofits and other entities that do not have as their primary purpose political activity but must register and report when their political activity reaches $50,000 in a year or $100,000 over four years. See id. § 84222. In addition the law requires periodic reporting from major donors (persons who make contributions of $10,000 or more per year) and persons who make independent expenditures exceeding $1,000 in a calendar year. Id. §§ 82013(b) & (c), 84200(b).


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has access to all of a committee’s financial activity through the 17th day before an election. In

San Francisco, this information is filed with the San Francisco Ethics Commission, and is posted on

the Commission’s website, which is fully searchable.3

B. State Disclaimer Laws

California requires all ballot measure committees, like plaintiff Yes on Prop B, to

include disclaimers on the face of political ads that comply with strict content and format requirements.

See generally Cal. Gov’t Code §§ 84501-84511. Those requirements include:

1. Sponsor identification: The disclaimer must include “Ad paid for

by” followed by the full name of the committee. Cal. Gov’t Code

§ 84502(a).

2. Name: A committee’s name must include the proposition number

or letter, whether the committee supports or opposes the measure,

id., and the name of any sponsor of the committee. Id. § 82048.7.

3. Top three major donors: The disclaimer must include the

committee’s top three major contributors of $50,000 or more from

the prior twelve months after the words “committee major funding

from.” Id. §§ 84501(c), 84503(a).

4. Format: The disclaimer must meet strict format requirements

depending on the type of media. For example, a disclaimer for a

30-second video must appear on the screen for five seconds at the

beginning or end of the ad; on a solid black background occupying

the entire bottom one-third of the screen; in text in contrasting

color, Arial type, and in a size 4% of the height of the screen; top

contributors must be on separate horizontal lines; and all

disclosures must be centered.4 Id. § 84504.1.

5. Amendment: Disclaimers on television, radio, telephone, and

electronic media advertisements must be updated to reflect any

changes in the major contributors within five business days. Id.

§ 84509(c).

3 See SF Code §§ 1.110, 1.112; San Francisco Ethics Commission, Campaign Finance Disclosure, https://sfethics.org/disclosures/campaign-finance-disclosure (last accessed January 20, 2020). 4 Other forms of advertisements must follow different, but equally detailed rules. See Cal. Gov’t Code §§ 84504 (radio and telephone); 84502.2 (print ads); 84504.3 (electronic media); 84504.6 (online platforms).


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II. SAN FRANCISCO’S COMPREHENSIVE DISCLAIMER LAWS

A. San Francisco’s General Disclaimer Laws

San Francisco’s Campaign and Governmental Conduct Code (“SF Code”) incorporates

the State’s disclaimer requirements, discussed above, but also imposes several additional requirements

relevant here. Specifically, City law: (1) reduces the threshold for reporting the top three contributors

from $50,000 under State law to $10,000; (2) requires additional text (“Financial disclosures are

available at sfethics.org.”); and (3) requires print disclaimers to be in 12-point font, instead of 10-point

font, as required by State law. SF Code § 1.161 (2019).

B. San Francisco’s New Disclaimer Laws

Plaintiffs challenge two disclaimer laws that went into effect in 2019. First, on May 22,

2018, the San Francisco Board of Supervisors amended the SF Code section 1.161(a)(5) to require that

committees like Yes on Prop B include a spoken disclaimer in each of their audio and video

advertisements, identifying their top three contributors of $10,000 or more (hereafter the “spoken

disclaimer” rule). See RJN, Ex. B at 23. The law permitted the disclaimer to be spoken at the end of

an ad. This new law went into effect on January 1, 2019.

Second, on November 5, 2019, San Francisco voters approved Proposition F, which

became effective December 20, 2019.5 Relevant here, Prop. F makes the following changes to the

City’s disclaimer laws.

1. Lowers the disclosure threshold for a committee’s top three

contributors from $10,000 to $5,000 (“actual contributors”).

2. Requires that if an actual contributor is itself a political committee

the advertisement must also identify the names of that committee’s

own top two contributors of $5,000 or more in the prior 12 months

(“secondary contributors”).

3. Requires that, except for audio ads, the names of both actual

contributors and secondary contributors must be followed by the

dollar amount each entity gave.

4. Requires the spoken disclaimer for audio and video advertisements

be spoken at the beginning of the ad. For video, this is in addition

5 Plaintiffs do not challenge other provisions of Prop. F.


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to the requirement that a written disclaimer must also appear on the

screen for five seconds or more.

5. Increases the size of disclaimers on print ads from 12-point font to

14-point bold font.

SF Code § 1.161(a).

The San Francisco Ethics Commission has adopted additional regulations for Prop. F,

which go into effect February 18, 2020. Those require that: (1) each major contributor must be

numbered by placing the numerals 1, 2, and 3, respectively, before each major contributor’s name,

(2) each major contributor that is a recipient committee must be followed by a dash and the words

“contributors include” followed by any secondary contributors, in order of amount given and separated

by a comma, and (3) each contributor must be followed by the amounts contributed in parentheses.

SF Ethics Commission Regulations § 1.161-3(a)(4).

Plaintiffs hereafter refer to the “spoken disclaimer rule” adopted in 2018 and Prop. F’s

disclaimer requirements together as the “new disclaimer laws”.

C. The Effect of the City’s New Disclaimer Laws

1. Video (television, YouTube, Facebook, and other digital platforms)

Before the City’s new disclaimer laws, disclaimers only had to be displayed on the

screen, not spoken, and could appear at the end of the ad. For a standard 30-second ad, the disclaimer

had to occupy one-third of the screen area for five seconds. See Cal. Gov’t Code § 84504.1.

Now, disclaimers must be spoken at the beginning of the ad, before any political

message can be conveyed. It takes approximately 28 seconds to speak plaintiffs’ disclaimer, making

any ads of 30 seconds or less essentially unavailable to plaintiffs. Muir Decl., ¶ 35. In addition, the

written disclaimer still must appear on the screen for at least five seconds. Plaintiffs’ disclaimer would

occupy approximately 35-40% of the screen. Id., ¶ 36. Mock-ups of ads with plaintiffs’ required

disclaimer are attached to the Muir Declaration at Exhibit 1.


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2. Radio (including streaming or digital radio) and phone calls

Before, disclaimers had to be spoken but could be at the end of the ad.6 The disclaimer

had to be delivered in a “clearly spoken manner and in a pitch and tone substantially similar to the rest

of the advertisement.” Cal. Gov’t Code § 84504(b).

Now, the disclaimer (less the dollar amounts contributed by actual or secondary

contributors) must be spoken at the beginning of the ad, before any political message can be conveyed,

and still must comply with the other requirements discussed above. SF Code § 1.161(a)(5). It takes

approximately 16 seconds to read plaintiffs’ radio ad disclaimer and approximately 28 seconds to read

plaintiffs’ live phone call disclaimer. Muir Decl. ¶¶ 48, 74.

3. Print (mailers, flyers, doorhangers, newspaper ads, etc.)

Before, disclaimers had to appear in a printed or drawn box with a solid white

background at the bottom of at least one page. In addition to other formatting requirements, each of

the top three contributors had to be listed on a separate horizontal line, in descending order, beginning

with the largest contributor, followed by a statement at the end of the disclaimer that “Financial

disclosures available at sfethics.org.” Print had to be at least 12-point font. Cal. Gov’t Code

§ 84504.2(a); SF Code § 1.161(a)(2).

Now, the disclaimer must follow all of the rules listed above and must also include

(1) the name of secondary contributors, and (2) the amounts the actual contributors and secondary

contributors have given in the last 12 months to their respective committees. In addition, a disclaimer

must be in 14-point bold font (SF Code § 1.161(a)(3)) and comply with the new formatting rules

established by the Ethics Commission. SFEC Reg. § 1.161-3. These new requirements substantially

increase the size of disclaimers. For plaintiffs, the disclaimer will consume 100% of a small “ear ad”

favored in Chinese newspapers, about 75-80% of an ad measuring 5 inches by 5 inches, about 31-33%

of a 5 inch by 10 inch ad, and 35-38% of a palm card (flyers handed out by field canvassers). See Muir

Decl., ¶¶ 55, 67, id., Ex. 1.

6 For radio advertisements and pre-recorded telephone calls, only the top two actual contributors had to be disclosed, and if the advertisement lasted 15 seconds or less or the disclaimer lasted more than eight seconds, only the top contributor had to be disclosed. Cal. Gov’t Code § 84504(b).


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4. Oversize Print (yard signs, billboards, etc.)

Before, disclaimers largely followed the rules for regular print, discussed above, but

each line of text had to be five percent of the ad height. Cal. Gov’t Code § 84504.2(b).

Now, although the format requirements did not change, disclaimers will increase

substantially because of Prop. F’s additional text requirements. For plaintiffs, the disclaimer will

consume approximately 35% of a yard/window sign or billboard. See Muir Decl., ¶ 61, id., Ex. 1.

D. Criminal, Civil, and Administrative Penalties for Violating Proposition F

Plaintiffs can be subject to criminal and civil penalties for failing to comply with the

City’s new disclaimer laws. SF Code § 1.170. In addition, plaintiffs can be subject to administrative

proceedings before the Ethics Commission that can result in fines up to $5,000 for each violation or

three times the amount unlawfully expended, whichever is greater. Id.; SF Charter § C3.699.13(c)(3).

III. PLAINTIFFS’ POLITICAL SPEECH

Plaintiff Yes on Prop B (“Yes on Prop B” or “the Committee”) is a local ballot measure

committee formed to support the passage of Prop. B. Declaration of Todd David (“David Decl.”), ¶ 6.

Plaintiff Todd David is the principal officer of the Committee and oversees its fundraising and

expenditures. Although there is at least one other committee supporting Prop. B, Mr. David formed

Yes on Prop B because he believed there was a need to get out the vote with the portion of the City’s

electorate with which he was most familiar given the compressed time period occasioned by the early

March primary and the need for Prop. B to pass by a two-thirds vote. Id., ¶ 9. To date, plaintiffs have

raised $15,000 and hope to raise more. However, several potential contributors that have traditionally

supported Mr. David and his committees, have so far declined to contribute, and have expressed

concern that their donors will not want to appear on ads to which they did not directly contribute. Id.,

¶ 23-25.

With a modest budget, Yes on Prop B intended to disseminate six-, fifteen- and thirty-

second video digital advertisements, yard or window signs, and ads in Chinese newspapers. Id., ¶ 29.

But under the City’s new disclaimer laws those forms of communication are effectively closed to

plaintiffs.


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LEGAL STANDARD

A preliminary injunction may issue if a plaintiff establishes: (1) likelihood of success

on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) that the

balance of equities tips in his favor; and (4) that an injunction is in the public interest. See Fed. R. Civ.

P. 65; Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Although injunctive relief is an

extraordinary remedy, “serious questions going to the merits and a hardship balance that tips sharply

toward the plaintiff can support issuance of an injunction, assuming the other two elements of the

Winter test are also met.” See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132

(9th Cir. 2011). The Ninth Circuit follows a “sliding scale” approach to the four preliminary

injunction elements, such that “a stronger showing of one element may offset a weaker showing of

another, as long as plaintiffs ‘establish that irreparable harm is likely.’” Doe v. Kelly, 878 F.3d 710,

719 (9th Cir. 2017) (quoting Cottrell, 632 F.3d at 1131). Where, as here, First Amendment rights are

at stake, a plaintiff need only establish a “colorable claim” that its First Amendment rights have been

infringed or threatened with infringement, and at that point, the burden shifts to the government to

justify the restriction. Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011)

(overruled in part on other grounds by Bd. of Trustees of the Glazing Health & Welfare Trust v.

Chambers, 941 F.3d 1195 (9th Cir. 2019)).

ARGUMENT

I. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS

A. The City’s New Disclaimer Laws Are Unconstitutional Under Strict

Scrutiny

The initial question in this case is what level of scrutiny should apply. Because they

directly and significantly reduce the quantity of speech in San Francisco by essentially foreclosing

independent expenditure and ballot measure committees from using certain media, and makes other

forms of communication more expensive and ineffective, the City’s new disclaimer laws must be

subjected to strict scrutiny.

Since Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court has recognized that

limitations on contribution and expenditure and campaign disclosure requirements operate in an area of


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the most fundamental First Amendment rights. The Court, however, has distinguished between these

laws based on the degree to which they encroach on protected First Amendment interests. Laws that

limit a person’s ability to make political expenditures “necessarily reduce[ ] the quantity of expression

by restricting the number of issues discussed, the depth of their exploration, and the size of the

audience reached,” Buckley, 424 U.S. at 19, and are therefore subjected to what amounts to strict

scrutiny: the regulation can survive only if it promotes a compelling interest and operates in manner

that is the least restrictive means to further that interest. McCutcheon v. Fed. Elec. Comm’n,

572 U.S. 185, 197 (2014). The only recognized interest that can justify an expenditure ban is

preventing quid pro quo corruption – the exchange of an official act by a candidate or officeholder for

money – or its appearance. Id. at 192.

In contrast, contribution limits impose “lesser restraint on political speech because they

permit the symbolic expression of support evidenced by a contribution but do not in any way infringe

the contributor’s freedom to discuss candidates and issues.” Id. at 197 (quotations omitted). Thus,

they can be upheld where the regulation advances “a sufficiently important interest” in a manner

“closely drawn to avoid unnecessary abridgment” of the First Amendment. Id. However, limits may

not be so low as to prevent committees from “amassing the resources necessary for effective

advocacy.” Buckley, 424 U.S. at 21. In addition, the Court has applied a similar test for campaign

disclaimer and disclosure requirements: to be upheld, a regulation must advance a “sufficiently

important governmental interest” in a manner substantially related to that interest. Id. at 64; Citizens

United v. Fed. Elec. Comm’n, 558 U.S. 310, 366 (2010).

However, the Supreme Court has avoided applying these standards in a mechanical

manner, particularly when a regulation appears on its face to fit within on category, but has broader

First Amendment implications. Put differently, when a contribution or disclaimer rule operates more

like an expenditure limit or acts as a significant “drag on First Amendment rights” or “imposes a

substantial burden” on First Amendment rights, Davis v. Fed. Elec. Comm’n, 554 U.S. 724, 739-40

(2008), the Court will depart from a mechanical application of the contribution/expenditure distinction

and closely evaluate the fit between the governmental interest being advanced and the burden it places

on speech. For example, in Davis v. Federal Election Commission, the court struck down a law that


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permitted a self-funding candidate’s opponent to raise money under a higher contribution limit.

Though the law did not put a cap on the candidate’s expenditures, the Court reviewed the law under

what was essentially strict scrutiny because “it impose[d] an unprecedented penalty on any candidate

who robustly exercises that First Amendment right.” See Davis, 554 U.S. at 739-40; see also Ariz.

Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 736-37 (2011) (same regarding a

public matching fund scheme).

The strict scrutiny analysis should apply here because the new disclaimer laws foreclose

essential avenues of communication (radio, tv, podcasts, online digital video, phone banks) to ballot

measure and independent expenditure committees by requiring disclaimers that will take up most or all

of the ad time or space and otherwise render them ineffective. Because they have the effect of

imposing limits on the type of speech such committees can undertake, the traditional level of scrutiny

that applies to garden-variety disclosure and disclaimer rules is a poor fit here. The Supreme Court has

predicated the use of that standard on the fact that while disclosure laws may impose some burden,

they do not impose a “ceiling on campaign-related activity” and “do not prevent anyone from

speaking.” Citizens United, 558 U.S. at 366. But that is precisely what the new disclaimer laws do.

Viewed under strict scrutiny, the City’s new disclaimer laws fail. The City has not and

cannot claim that those laws are needed to advance the only recognized government interest sufficient

to withstand strict scrutiny: preventing quid pro quo corruption or its appearance. McCutcheon,

572 U.S. at 192. That interest does not apply here because the disclaimer rules being challenged apply

most directly to independent expenditure committees, which operate independently from candidates,

and ballot measure issues, which advance issues, not candidates. Concerns about quid pro quo

corruption simply cannot justify restraints on those types of committees. SpeechNow.org v. Fed. Elec.

Comm’n, 599 F.3d 686, 695-96 (D.C. Cir. 2010) (concerns about quid pro quo corruption cannot

justify restraints on independent expenditure committees); Citizens Against Rent Control/Coal. for

Fair Hous. v. Berkeley, 454 U.S. 290, 298-99 (1981) (same for ballot measure committees).


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B. Even Under Exacting Scrutiny, the City’s Disclaimer Requirements Unduly

Burden Speech and Are Unconstitutional

Even if the new disclaimer laws are reviewed under “exacting scrutiny,” they remain

unconstitutional. Exacting scrutiny requires a “substantial relation” between the disclosure

requirement and a “sufficiently important government interest.” Citizens United, 558 U.S. at 366-67.

“To survive this scrutiny, significant encroachments ‘cannot be justified by a mere showing of some

legitimate governmental interest.’” Davis, 544 U.S. at 744 (quoting Buckley, 424 U.S. at 64).

“Instead, there must be a relevant correlation or substantial relation between the governmental interest

and the information required to be disclosed and the governmental interest must survive exacting

scrutiny.” Id. (internal quotations omitted). “To withstand this scrutiny the strength of the

governmental interest must reflect the seriousness of the actual burden of the First Amendment.” Id.

Several other principals emerge from the caselaw. First, the City, not plaintiffs, has the

burden of proof and must demonstrate a substantial match between a legitimate governmental interest

and the burden being imposed. The City must also prove that the rules do not unduly burden speech.

See McCutcheon, 572 U.S. at 210 (quoting United States v. Playboy Entertainment Group, Inc.,

529 U.S. 803, 816 (2000)).

Second, to the extent there is any doubt as to whether the City has carried its burden,

those doubts must be resolved in plaintiffs’ favor and the disclaimer rules must be struck down. Fed.

Elec. Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 457 (2007) (Roberts, C.J.) (“In drawing that

line, the First Amendment requires us to err on the side of protecting political speech rather than

suppressing it.”). As Chief Justice Roberts has said, “we give the benefit of the doubt to speech, not

censorship.” Id. at 482.

Third, regardless of the level of scrutiny, a court must closely assess the relationship

between the interest advanced by the government and the burden on speech, and where the burden is

greater, so must be both the justification and fit. “[R]egardless whether we apply strict scrutiny or

Buckley’s ‘closely drawn’ test, we must assess the fit between the stated governmental objective and

the means selected to achieve that objective. . . . Or to put it another way, if a law that restricts


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political speech does not ‘avoid unnecessary abridgment’ of First Amendment rights, it cannot survive

‘rigorous’ review.” McCutcheon, 572 U.S. at 199 (quotations, citations, emphasis omitted).

C. The New Disclaimer Laws’ Timing and Format Requirements Unduly Burden

Speech and Are Unconstitutional

We first address the new disclaimer laws’ timing and format requirements, which

require video and audio ads and phone calls to first convey plaintiffs’ full disclaimer spoken at the

beginning before any political message. Prior to these new laws, a disclaimer could be at the end of

the ad and for video, it needed only to appear on the screen for five seconds; it did not need to be

spoken. Cal. Gov’t Code § 84504.1; SF Code § 1.161 (2018).

1. The City’s new disclaimer laws impose a severe burden on speech

The disclaimers the City now forces plaintiffs to communicate are so long and

cumbersome that they “effectively rule out” methods of communication that happen to be some of the

most cost-efficient methods of communications available to small, grassroots campaigns, such as

internet videos, newspaper ads, and volunteer phone banks, and would “drown out” their message on

other forms of communication. Plaintiffs’ disclaimer will consume up to 100% of air time for videos

under 30 seconds, and will consume 75-100% of small newspaper ads and 35% of window signs.

Muir Decl., ¶¶ 36, 61 & 67. This severe burden on core political speech is unconstitutional.

Just last year, the Ninth Circuit, sitting en banc, held that the size of a compelled

disclaimer that took up 20% of an ad unduly burdened commercial speech, which is accorded less

protection then the core political speech at issue here. In American Beverage Association v. City and

County of San Francisco, 916 F.3d 749 (9th Cir. 2019), the court was asked to review San Francisco’s

requirement that printed ads promoting sugar-sweetened beverages include the following disclaimer,

occupying 20% of the ad space, on printed ads:

WARNING: Drinking beverages with added sugars contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.

Id. at 753.

The court first determined that the lower level of scrutiny for commercial speech set

forth in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985)


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applied. Under that standard, government can compel truthful disclosure in commercial speech

provided the disclosure is “reasonably related” to a substantial governmental interest. Am. Beverage

Ass’n, 916 F.3d at 756. The court had little trouble enjoining enforcement of the disclaimer, holding

the City had not carried its burden of proving the size of the compelled disclaimer was not “either

unjustified nor unduly burdensome.”7 Id. The court held:

Defendants have not shown that the contrasting rectangular border containing a warning that covers 20% of the advertisement does not ‘drown[ ] out’ Plaintiffs’ messages and ‘effectively rule[ ] out’ the possibility of having [an advertisement] in the first place. On this record, therefore, the 20% requirement is not justified and is unduly burdensome when balanced against its likely burden on protected speech.

Id. (citation omitted).

Both the law and facts in this case are even more compelling than in American

Beverage. First, this case involves political speech, which is entitled to the fullest protection under the

First Amendment, more so than commercial speech. Even if the Court applies the “exacting scrutiny”

standard, that standard requires a “substantial fit” between the state’s interest and the means for

achieving it, which is more rigorous then the standard the court applied in American Beverage, which

only requires a “reasonable fit.”

The burden on protected speech is also much more severe here than in American

Beverage. The American Beverage disclaimer took up 20% of print ads, but did not apply to other

forms of communication, such as video or audio. Here the scope of the disclaimer is both broader,

applying to all forms of communication, and more intrusive, occupying at least 20% of most forms of

communication and 100% of some of plaintiffs’ preferred forms of communication.

Margaret Muir is one of the leading political consultants in the City and has run

numerous successful Citywide ballot measure campaigns. Muir Decl., ¶ 4. Ms. Muir offered to help

the Committee decide how to get its message out given its limited budget, and after being informed of

the City’s new disclaimer rules, she concluded that the Committee is foreclosed from engaging in most

of its preferred modes of communication because its disclaimer will either take up most or all of the

7 All eleven judges hearing the case believed the disclaimer was unconstitutional. There were no dissents, and the three judges who wrote or joined two separate concurrences argued heightened scrutiny applied. See generally, Am. Beverage Ass’n, 916 F.3d at 749.


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allotted time or space, or would otherwise render them ineffective. To determine the law’s effect on

Yes on Prop B, Ms. Muir mocked up several forms of possible communication. For video ads, the

following disclaimer would have to be spoken in full prior to plaintiffs’ political message:

Ad paid for by Yes on Prop B, Committee in support of the Earthquake Safety and Emergency Response Bond. Committee major funding from: 1. United Democratic Club of San Francisco – contributors include San Francisco Association of Realtors, Committee on Jobs Government Reform Fund; 2. Edwin M. Lee Democratic Club Political Action Committee – contributors include Committee on Jobs Government Reform Fund; 3. Yes on A, Affordable Homes for San Franciscans Now! – contributors include Salesforce.com, Inc., Chris Larsen. Financial disclosures are available at sfethics.org.

Muir Decl., ¶ 34.

The disclaimer consumes 28 seconds. Id., ¶ 37. Short, catchy online videos are the medium of choice

among candidates and ballot measure committees because they are not expensive to make or place (on

YouTube, social media, or on destination websites), and they can be highly effective. Declaration of

Andrew Sinn (“Sinn Decl.”) ¶ 5; see also Declaration of Nicole Derse (“Derse Decl.”), ¶¶ 8-11. But

because a viewer is usually scrolling down and quickly past them, they must catch the viewer’s

attention immediately, and must convey the critical political message in the first 5 seconds, with the

remainder of the ad serving as reinforcement. Sinn Decl., ¶ 6; Derse Decl., ¶ 12. Most inventory to

purchase these ads is sold in six- or fifteen-second increments. Sinn Decl., ¶ 6. Under Prop. F,

plaintiffs must speak their full 28-second disclaimer at the beginning of any video ad, effectively

foreclosing this mode of communication. Muir Decl., ¶ 37.

Here are the other unappealing options plaintiffs face:

• Longer form videos (30 second spots on cable or internet). Plaintiffs must now

speak the full disclaimer at the beginning of any video ad, which takes

28 seconds. Thus, the disclaimer would take up 93% of these videos (Muir

Decl., ¶ 36) imposing a 93% “tax” on plaintiffs’ political speech.

• Volunteer and paid live phone calls. Paid phone banks are an inexpensive mode

of communication commonly utilized by political campaigns. Phone calls

placed by uncompensated volunteers are even more cost effective, and have the

added advantage of being an important grassroots organizing tool, by gathering

individuals with shared political goals in a common environment. Muir Decl.,

¶¶ 68-70. Individuals participating in phone banks organized by plaintiffs must

now speak the full disclaimer at the beginning of any phone call they place. Id.,

¶ 73. Experience dictates that an individual who receives a phone call that


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begins with a 28-second disclaimer will terminate the call before any political

message can be delivered. Therefore, the City’s disclaimer laws foreclose this

form of communication to plaintiffs.

• Robocalls, radio or streaming music services. The disclaimer will consume

over 50% of a 30-second audio spot or robocall, but, perhaps even worse, will

prevent plaintiffs from conveying any of their political message during the

critical first 5 seconds of engagement. Muir Decl., ¶ 48; Sinn Decl., ¶ 12.

Accordingly, Ms. Muir has advised Yes on B that any such communications

would be worthless.

• Oversize Print (window signs, yard signs, billboards). Plaintiffs’ disclaimer will

now consume approximately 35% of usable space. Muir Decl., ¶ 61.

• Newspaper ads. Ms. Muir mocked up three types of traditional newspaper ads.

In San Francisco, ads in Chinese newspapers remains an effective way of

communicating with a constituency who has high voting propensity. Newspaper

ads usually appear in three size formats: small “ear ads” alongside a masthead,

5” x 5” ads, and 10” x 5” ads. Plaintiffs’ disclaimer would take up 100% of an

ear ad, 75-80% of a 5 x 5 ad; and 31-33% of a 10 x 5 ad. Muir Decl., ¶ 67.

As this evidence demonstrates, the City’s new disclaimer laws place a severe burden on

plaintiffs’ First Amendment rights. They are much more intrusive and severe than the disclaimer at

issue in American Beverage, operate on core political speech, and are therefore unconstitutional.

Though other cases have upheld disclaimer requirements under the exacting scrutiny

standard, those requirements were far less intrusive than the City’s new disclaimer laws. In Citizens

United, the Supreme Court upheld the requirement that television and radio communications that

identify a candidate and that are disseminated shortly before an election must contain the name, and

address or website of the entity funding the ad, and a statement that “the communication is not

authorized by an candidate or candidate’s committee.” 558 U.S. at 366 (quotations omitted). Such a

statement had to be clearly spoken and displayed on the screen. But the law in question did not dictate

how long or when those disclaimers had to be spoken or displayed, and the disclaimers at issue

occupied a fraction of the space required here, causing only a minor intrusion on plaintiffs’ speech.

Other cases that have upheld on-ad disclaimers have involved similarly limited disclaimers that can

come at the end of an ad, are limited in size, and do not unduly intrude on the speaker’s message. See

Human Life of Washington, Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) (upholding an on-ad

disclaimer requiring the sponsor’s name (and address on print ads) and, if the ad was an independent


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expenditure, a statement that the ad was not authorized by a candidate; law did not dictate the amount

of time or space dedicated to disclaimer); Yamada v. Snipes, 786 F.3d 1882 (9th Cir. 2015) (same).

The disclaimers upheld in Brumsickle and Yamada are much less intrusive than what was already

required by existing State and City law before the City’s new disclaimer laws. Thus, these cases are

not controlling here.

2. The City cannot provide a sufficiently important governmental interest to

justify the new disclaimer formatting rules

The City cannot identify a sufficiently important interest to justify the need for the new,

onerous disclaimer rules. Before these laws, every ballot measure and independent expenditure

advertisement had to clearly identify the name of committee, its top three donors (if they contributed

$10,000 or more), that financial disclosures are available at sfethics.org, and, if the ad was an

independent expenditure, that the ad was not authorized by a candidate or committee. See generally,

Cal. Gov’t Code §§ 84501-84506.5; SF Code § 1.161 (2018). Other than boiler-plate statements about

the need for more disclosure, neither the findings nor purpose sections of Prop. F nor proponent’s

ballot arguments provide any rationale for why it is now necessary for disclaimers to be spoken at the

beginning of audio and digital ads, and why print disclaimers must be so much bigger. See RJN, Ex. C

(Prop F. ballot materials). There is not one sentence in any of the ballot materials that attempts to

justify this change, nor are plaintiffs aware of any factual record demonstrating the insufficiency of the

existing rules. That lack of a sufficiently important governmental interest dooms the City’s disclaimer

rules, particularly in light of the significant burden they impose on speech.

D. The Secondary Contributor Disclosure Requirement Does Not Withstand Exacting

Scrutiny

1. Proposition F’s secondary contributor rule imposes a severe burden on

speech

Prop. F requires that the Committee identify on the face of its political messages,

individuals and entities that they have not associated with, information that will ultimately confuse and

misinform the electorate. Specifically, if a committee’s listed major contributor is itself a recipient

committee, the City requires that the advertisement state the names of that committee’s own top two

contributors (“secondary contributors”) of $5,000 or more in the prior 12 months, along with the dollar


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amounts of their contributions. SF Code, § 1.161(a)(1). That is so even if, as is the case here, those

secondary contributors have not given or associated with the committee making the ad. Instead, the

secondary contributors must be disclosed merely because they have associated with other committees

for unrelated purposes. In the case of plaintiffs, all of the secondary contributors Yes on Prop B must

identify made their contributions to other committees in 2019, when the Committee did not yet exist.

None could have contemplated that by donating to other committees at that time, they would be

publicly identified on Yes on Prop B’s ads now. This is especially true for the $250,000 attributed to

Chris Larsen and $300,000 attributed to Salesforce.com, which were donated for the specific purpose

of supporting Proposition A, an unrelated affordable housing measure that appeared on the

November 2019 ballot. David Decl., ¶¶ 14-15.

By requiring that plaintiffs display on the face of every political communication the

names and contribution amounts of secondary contributors with whom they have not associated,

Prop. F forces the Committee to associate with them when communicating its political message. It

also forces the Committee to credit these secondary contributors as endorsers of that message,

regardless of whether that is actually true. Here it is false: none of the secondary contributors have

contributed to Yes on Prop B or reached out to endorse the Committee’s activity. “[A]ny government-

compelled speech must be, at the very least, factually accurate.” Am. Beverage Ass’n, 916 F.3d at 767

(Ikuta, J., concurring).

In California Republican Party v. Fair Political Practices Commission, No. CIV-S-04-

2144, 2004 U.S. Dist. LEXIS 22160 (E.D. Cal. Oct. 27, 2004), the Eastern District of California

enjoined a contributor disclaimer on political ads mandated by California’s Political Reform Act on the

grounds that on-advertisement disclosures of major contributors to political parties infringed plaintiffs’

First Amendment rights. The court explained that identifying specific contributors, such as large labor

unions or oil companies, “may prejudice voters against the position advocated,” id. at *12, and further

observed that on-advertisement disclosure of contributors’ identities could mislead the voters into

believing that the contributors supported specific positions when they in fact did not. Id. at *19. That

was true in that case because the parties were general purpose committees that support or oppose a


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wide array of candidates and propositions. The City’s disclaimer law goes far beyond this by

compelling disclosure of persons who have not even supported the speaker.

And those very harms are manifest here. For strategic reasons, plaintiffs had decided

not to solicit contributions from the Realtors Association. David Decl., ¶¶ 20-21. That organization is

commonly associated with pro-development and pro-business interests, and identifying it on

advertisements will tie those interests to the Committee’s political message, presenting a risk that

voters who are not pro-business or pro-development will be prejudiced against the Committee’s

speech. Id., ¶ 21. But because the Committee has accepted contributions from the United Democratic

Club of San Francisco, Prop. F nevertheless requires that the Committee’s advertisements identify the

San Francisco Association of Realtors as a supporter.

This forced association implicates fundamental First Amendment principles. In

Janus v. American Federation of State, County, and Municipal Employees, 138 S. Ct. 2448 (2018), a

public sector union’s agency fee requirement effectively forced non-members to support speech with

which they disagreed. The Supreme Court held that this infringed non-members’ First Amendment

rights, affirming as a first principle that “the right to eschew association for expressive purposes” is

protected. Id. at 2463 (citations, quotations omitted); see also id. (citing Roberts v. U.S. Jaycees,

468 U.S. 609, 623 (1984) (“Freedom of association . . . plainly presupposes freedom not to associate”),

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 12 (“[F]orced associations that burden

protected speech are impermissible.”)).

Those very concerns are amplified here. In Janus, nonmembers’ funds were used to

support messages with which they disagreed, but no individual was depicted as having personally

endorsed a specific message, or called out by name as being associated with the union. Under Prop. F,

the Committee has no choice but to claim an association that does not exist and depict secondary

contributors as having endorsed the Committee’s message on every campaign advertisement it issues.

Furthermore, Prop. F demands that the Committee attribute a dollar amount to each secondary

contributor, inviting voters to judge the extent of their financial commitment to the Committee’s

message when in fact there has been no commitment to the Committee at all.


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Prop. F has also compromised plaintiffs’ ability to disseminate political advertisements

in the first place by chilling its fundraising activity. Committees who may have otherwise donated to

plaintiffs have declined to contribute to the Committee, and in so doing have expressed concern that

their top contributors will be unwittingly associated with the Committee’s political message by virtue

of being included on the Committee’s disclaimers if they contributed. David Decl., ¶ 24. By chilling

the Committee’s ability to associate with potential donors, Prop. F has necessarily diminished the

quantum of the Committee’s political speech. And by discouraging otherwise willing parties from

engaging in political association with one another, Prop. F imposes a clear and unacceptable burden on

the plaintiffs’ First Amendment rights. See Perry v. Schwarzenegger, 591 F.3d 1147, 1159

(9th Cir. 2010). “[T]he government must justify its actions not only when it imposes direct limitations

on associational rights, but also when government action ‘would have the practical effect of

discouraging the exercise of constitutionally protected political rights.’” Id. at 1159-60 (quoting

NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 461 (1958)) (internal quotation marks omitted).

2. The City cannot provide a sufficiently important governmental interest to

justify the new secondary contributor rule

Courts have held that reasonable disclaimer provisions are justified by the public’s

interest in knowing who is responsible for political advertisements, so that the public can “make

informed choices in the political marketplace.” McConnell v. Fed. Elec. Comm’n, 540 U.S. 93, 197

(2003) (quoting McConnell v. Fed. Elec. Comm’n, 251 F. Supp. 2d 176, 237 (D.C. Cir. 2003)). But

the secondary disclaimer requirements are poorly tailored to this end. The law already requires that all

committees file periodic campaign finance reports disclosing all nontrivial donations, and during the

90 days before an election, primarily formed ballot measure and independent expenditure committees

must disclose contributions of $1,000 or more within 24 hours of receipt, and all recipient committees

and major donors must disclose contributions made within 24 hours of receipt. In the vast majority of

cases, the information that Prop. F now requires (a committee’s secondary contributions and the

amount of the primary and secondary contributions) will already be part of the public record.

In a small subset of cases, the identity of a secondary contributor may not already be in

the public record. Because the cutoff for the last pre-election report is the 17th day before an election,


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if a major contributor to a ballot measure or independent expenditure committee is a general purpose

committee, and that general purpose committee receives a large contribution after the 17th day before

an election, that contribution may not end up on the public record until after the election. But Prop. F

is not tailored to address this fringe case – it requires that a committee identify secondary contributors

looking backwards for a period of twelve months. To the extent that there is a gap in the public record,

it can be addressed through far less restrictive means. For example, a general purpose committee could

be required to disclose contributions within 24 hours of receipt after the cutoff of the last pre-election

report. But instead of employing a scalpel, the City chose to use a sledgehammer.

Moreover, the secondary contributor rule does not substantially add to the information

available to the public and, in fact, threatens to mislead, rather than inform. Contributors often have

little to no control over how a committee ultimately spends its funds and will usually have no

knowledge of the committee’s subsequent contributions or expenditures. Yet by requiring the names

of secondary contributors to appear on the political communications of a third-party to whom they

have not contributed, Prop. F implies to the voting public that those secondary contributors knew,

approved, and directed their money to fund the third party’s communication. In this way, Prop. F

operates in the same manner as a New York law recently struck down as unconstitutional in Citizens

Union of New York v. Attorney General of New York, 408 F. Supp. 3d 478 (S.D.N.Y. 2019). The

New York law required non-profit charitable organizations, 501(c)(3) organizations, to publicly report

all of their donors if the 501(c)(3) contributed $2,500 or more to a nonprofit social welfare

organization (a “section 501(c)(4) organization”) that engaged in lobbying. The court struck down the

law, rejecting New York’s argument that the law advanced an informational interest in knowing the

contributors who, albeit indirectly, helped fund the 501(c)(4)’s lobbying activity:

This informational goal does not justify the burden on First Amendment rights created by § 172-e. The disclosure of the identity of a 501(c)(3) donor makes a poor fit with this informational interest. The link between a 501(c)(3) donor and the content of lobbying communications by the 501(c)(4) is too attenuated to effectively advance any informational interest. Cf. Van Hollen v. Fed. Elec. Comm’n, 811 F.3d 486, 497 (D.C. Cir. 2016) (noting the ‘intuitive logic that persons who contribute to the general treasury of a nonprofit corporation do not necessarily support the corporation’s electioneering communications’ (citation omitted)).


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Id. at 505 (emphasis added).

Prop. F poses the same problem: the relationship between the secondary contributor and

the ultimate speaker is far too attenuated to justify such a significant burden on the associational and

First Amendment rights of the Committee, its actual contributors, and secondary contributors.

Prop. F further misleads the voters by requiring that the amounts of secondary

contributors’ donations to other committees be reflected in the Committee’s political advertisements

when there is no evidence that the secondary contributors’ donations to other committees actually

flowed to the Committee. For example, it is entirely possible that the Committee on Jobs’ donations

were spent in full by the original committees, and that the funds plaintiffs received from the donor

committees were derived from other donors’ contributions. Moreover, Prop. F requires the Committee

to vastly overstate the amount of money it has received. For example, Salesforce.com, Inc. contributed

$300,000 to the Yes on A, Affordable Homes for San Franciscans Now! Committee, an entirely

different political cause. David Decl., ¶ 14. But now, by virtue of having received $5,000 from Yes

on A, the Committee’s ads must include $300,000 from Salesforce.com even though the Committee

itself has raised nothing close to $300,000 for its entire campaign. The result is that voters will read

these disclaimers and reasonably, but incorrectly, assume that the Committee and the secondary

contributors are not only associating with one another to accomplish a shared political goal, but are

doing so extensively and far beyond the costs of the political ads on which the disclaimers appear.

Because Prop. F fails to provide the electorate with relevant information or deter

corruption or any appearance thereof, there is no “substantial relation” between Prop. F’s secondary

contributor disclaimer requirement and a “sufficiently important” governmental interest. See Citizens

United, 558 U.S. at 366-67 (quoting Buckley, 424 U.S. at 64, 66). Nor does “the strength of the

governmental interest . . . reflect the seriousness of the actual burden on plaintiffs’ First Amendment

rights.” See Doe v. Reed, 561 U.S. 186, 187 (2010) (quoting Davis, 554 U.S. at 744). Plaintiffs are

therefore more than likely to succeed on the merits of their First Amendment claim.


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II. THE REMAINING EQUITABLE FACTORS WEIGH HEAVILY IN PLAINTIFFS’

FAVOR

Plaintiffs easily satisfy the remaining equitable criteria for issuance of an injunction

because (1) they are likely to suffer irreparable harm in the absence of preliminary relief; (2) the

balance of equities tips in their favor; and (3) an injunction is in the public interest. See Winter,

555 U.S. at 20.

With respect to the first criteria, the Ninth Circuit has explained that “[t]he loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury” and that “harm is particularly irreparable where, as here, a plaintiff seeks to engage in political

speech, as timing is of the essence in politics and [a] delay of even a day or two may be intolerable.”

Thalheimer, 645 F.3d at 1128 (alterations in original) (quoting Klein v. City of San Clemente,

584 F.3d 1196, 1208 (9th Cir. 2009)) (internal quotation marks omitted).

For the reasons explained above, plaintiffs’ clear likelihood of success on the merits

more than establishes that this requirement is met. The deprivation of plaintiffs’ First Amendment

rights is already very real. Due to its limited budget, it is critical that the Committee’s communications

be efficient and effective. David Decl., ¶ 27. Prop. F effectively deprives plaintiffs of many of the

most effective and cost efficient modes of communications, while drastically lessening the impact of

others. Sinn Decl., ¶ 12; Muir Decl., ¶¶ 15-17. The collective weight of these harms is amplified by

the fact that, with the election merely five weeks away, plaintiffs’ constitutional right to communicate

is of paramount importance.

The balance of equities also tips sharply in the Committee’s favor because the burdens

the City’s new disclaimer laws place on plaintiffs’ First Amendment rights greatly outweigh any value

of its compelled disclaimer. This is especially so because a violation of these laws may have criminal

consequences, which presents an “extraordinary harm and a serious chill upon protected speech.”

Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014) (citing Ashcroft v. ACLU, 542 U.S. 656, 670-71

(2004)); see SF Code § 1.170 (civil, criminal, and administrative penalties). In contrast, the hardship

to the City is minimal because even in the absence of the City’s new disclaimer laws, San Francisco

still has perhaps the most extensive on-ad disclaimer rules in the country, which ensure that each


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political communication contains, in easily readable form: (1) the name of the sponsor of the

communication; (2) the top three donors of $10,000 or more; (3) a statement that financial disclaimers

are available at sfethics.org; and (4) for independent expenditures, a statement that the communication

is not authorized by a candidate. Moreover, the new disclaimers themselves are factually misleading,

since Prop. F mandates that the Committee tell voters that it is associated with secondary contributors

with whom it has not actually associated. See David Decl., ¶¶ 16, 20-21.

Finally, the public interest favors the exercise of First Amendment rights. “[T]here is

practically universal agreement that a major purpose of [the First] Amendment was to protect the

free discussion of governmental affairs,” including speech concerning ballot measure elections. First

Nat’l Bank v. Bellotti, 435 U.S. 765, 776-77 (1978). Accordingly, the Ninth Circuit has “consistently

recognized the significant public interest in upholding First Amendment principles.” Harris, 772 F.3d

at 583 (upholding issuance of preliminary injunction on First Amendment grounds, quoting

Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002)). Issuance of an

injunction ensures the unfettered exchange of ideas and is undoubtedly in the public interest. Leaving

the City’s new disclosure laws to stand will ensure that some political speakers cannot disseminate

their messages, thus reducing the number of perspectives available to the public.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for preliminary injunction should be

granted.

Dated: January 28, 2020 Respectfully submitted,

OLSON REMCHO, LLP MAINARDI LAW By: /S/ Thomas A. Willis

Attorneys for Plaintiffs Yes on Prop B, Committee in Support of the Earthquake Safety and Emergency Response Bond and Todd David


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PROOF OF SERVICE – NO. 3:20-cv-00630 1

PROOF OF SERVICE

I, the undersigned, declare under penalty of perjury that:

I am a citizen of the United States, over the age of 18, and not a party to the within

cause of action. My business address is 1901 Harrison Street, Suite 1550, Oakland, CA 94612.

On January 28, 2020, I served a true copy of the following document(s):

Memorandum of Points and Authorities

in Support of Motion for Preliminary Injunction

on the following party(ies) in said action:

Andrew N. Shen, Deputy City Attorney Tara M. Steeley, Deputy City Attorney Office of the City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 Phone: (415) 554-4700 Email: [email protected]

[email protected]

Attorneys for Defendant City and County of San Francisco

☐ BY UNITED STATES MAIL: By enclosing the document(s) in a sealed envelope or package addressed to the person(s) at the address above and

☐ depositing the sealed envelope with the United States Postal Service, withthe postage fully prepaid.

☐ placing the envelope for collection and mailing, following our ordinarybusiness practices. I am readily familiar with the business’s practice forcollecting and processing correspondence for mailing. On the same daythat correspondence is placed for collection and mailing, it is deposited inthe ordinary course of business with the United States Postal Service,located in Oakland, California, in a sealed envelope with postage fullyprepaid.

☐ BY OVERNIGHT DELIVERY: By enclosing the document(s) in an envelopeor package provided by an overnight delivery carrier and addressed to the personsat the addresses listed. I placed the envelope or package for collection andovernight delivery at an office or a regularly utilized drop box of the overnightdelivery carrier.

☐ BY MESSENGER SERVICE: By placing the document(s) in an envelope orpackage addressed to the persons at the addresses listed and providing them to aprofessional messenger service for service.

☐ BY FACSIMILE TRANSMISSION: By faxing the document(s) to the personsat the fax numbers listed based on an agreement of the parties to accept service byfax transmission. No error was reported by the fax machine used. A copy of thefax transmission is maintained in our files.

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mailto:[email protected]

mailto:[email protected]

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[-l BY EMAIL TRANSMISSION: By emailing the document(s) to the persons atr-r the email addresses listed based on a court order or an agreement of the parties toaccept service by email. No electronic message or other indication that thetransmission was unsuccessful was received within a reasonable time after thetransmission.

I declare, under penalty of perjury, that the foregoing is true and correct. Executed on

January 28,2020, in Oakland, California.

Michael A. N(00399030-12)

')PROOF OF SERVICE -NO. 3:20-cv-00630

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THOMAS A. WILLIS, ANDREW HARRIS WERBROCK,...ANDREW HARRIS WERBROCK, State Bar No. 304509 KRISTEN MAH...

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