A federal appeals panel has ruled free speech is not imperiled by a San Francisco ordinance, which requires political ads carry the names of top financial contributors to the political committees producing the ads.
The decision went against political activist Todd David. David founded the committee No on E, San Franciscans Opposing the Affordable Housing Production Act. As of May 10, 2022, the group had raised $15,000 from three donors, one of which was Edwin M. Lee Asian Pacific Democratic Club PAC Sponsored by Neighbors for a Better San Francisco Advocacy, according to court papers.
No on E was formed to back Proposition B, a measure on the June 7, 2022 city ballot that would change the composition and appointment structure of the City Building Inspection Commission. No on E planned to publicize its support of the proposition through mailers and, newspaper and digital advertisements.
California law requires certain political ads published by committees to include the committee's chief financial contributors. San Francisco goes beyond this, with an ordinance requiring committees to also name the top donors to the chief contributors.
No on E went to federal district court to claim San Francisco's requirement violated No on E's right to free speech, and asking for a preliminary injunction. District Judge Charles Breyer denied the injunction on grounds No on E was not likely to eventually win the case on its merits.
On appeal, Circuit Judge Graber sided with Breyer, saying the public's right to know is paramount.
"Defendants (the city of San Francisco) have a strong governmental interest in informing voters about who funds political advertisements," Graber said, adding: "We have previously recognized that providing information to the electorate may require looking beyond the named organization that runs the advertisement."
Graber noted sunlight is needed in connection with political advertising.
"Defendants show that donors to local committees are often committees themselves and that committees often obscure their actual donors through misleading and even deceptive committee names," Graber said.
In this regard, Graber quoted a 2003 U.S. Supreme Court ruling: "Plaintiffs never satisfactorily answer the question of how uninhibited, robust, and wide-open speech can occur when organizations hide themselves from the scrutiny of the voting public."
One argument put forth by the No on E committee was the city ordinance burdened plaintiffs' free speech, because the disclaimer needed to list all the contributors would be so large, it would overwhelm the message portion of the ad. However, Graber noted the city agreed to not require the disclaimers on smaller ads or in short spoken disclaimers in audio ads.
No on E also contended the ordinance would deter some donors who wished to be anonymous, but Graber said there was no evidence of any specific deterrence.
Plaintiffs have been represented by Alan Gura, of the Institute for Free Speech in Washington, D.C., and by James Sutton, of Sutton Law Firm, of San Francisco.
San Francisco has been defended by City Attorney David Chiu and Deputy City Attorneys Tara Steeley and Wayne Snodgrass.