Congratulations are due in Newport Beach to political consultant Scott Taylor and proponents Bill Ficker, Marion Bergeson, and Jack Crowl on their victory last night with the Charter Amendment known as the "City Hall in the Park" Initiative, which will site a new City Hall in Newport Center near the main library and save taxpayers millions. I was pleased to write the proposed law for them and successfully defend it in court. The 5.5% margin of victory must have made for a sweet night, Bill Ficker!
That said, the City of Newport Beach has one of the most threatening and unconstitutional campaign ordinances on its books I have ever seen, and the free-speech loving Republicans on that council need to repeal this law before the next municipal elections to avoid getting slapped with a civil rights suit they are certain to lose, and certain to pay for. The law, which can be found on the City’s website at Municipal Code section 1.30, criminalizes all "writings," direct-mail and flyers distributed to 200 or more people in Newport Beach within 14 days of an election, unless copies are filed with the City Clerk within 2 hours of distribution, and supported by evidence of how they were distributed. The penalty is six months in jail, a $500 fine, or both.
The law claims it is "content neutral" because it affects all writings and requires filing after distribution has begun. It is admittedly focused on last minute "hit pieces" and is intended to force public disclosure of such mailings, and all late mailings, to give opponents the opportunity to "respond to statements" that are "untrue, or believed to be untrue."
The big problem here is that government power is not intended to sort through what statements of candidates and measures are "true or untrue" during an election campaign. And campaign ordinances are not constitutionally valid when they affect the content or volume of speech, are vague, are abritrary, or deny fundamental First Amendment protections. This Newport Beach "hit piece" crime fails to pass constitutional muster, and I can see a civil rights case on the horizon unless the Council repeals this monster of a law before the next rounds of elections.
Here are just four reasons why the law is unconstitutional.
1. The law does indeed unconstitutionally affect content and volume of speech, and experts would agree. Targeting of messaging to "get out the vote" or "GOTV" has become an essential form of campaigning today. Campaigns seek to identify and get their special groups of voters to the polls to win a race. As a result, campaign strategy does not always intend to communicate a single message to the broader group of voters. Thus, a campaign might cause a message to be sent to a specific subset of voters that states, "Candidate Jones has been a member of Scientology for twenty years." The message is intended to relate the candidate to a specific group of voters that may be motivated to support Candidate Jones because of his special affiliation. But the campaign manager might not make this same message to the entire group of voters in a city because strategically it might not be helpful. Similarly, a message that "Candidate Jones has been active in the Republican Party for twenty years" would clearly not be helpful if sent to both Republican and Democratic voters. Thus, content of communications is often determined by the ability to target or limit the distribution of the message for maximum effect.
Under the Newport Beach ordinance, such targeted messages have a greatly diminished value to the candidate or measure seeking to make the statements, when they are required to publicly disclose the content. The statements, which are true and could be helpful through a targeted direct-mail appeal, could become actually harmful to election prospects when required to be disclosed broadly to all voters. In this regard, experts would testify that the Newport Beach ordinance "dumbs down" pure political speech by adding a new consideration to what a campaign will say, how it says it, and when it says it. In an effort to comply with the ordinance and avoid jail time, candidates and measures are discourgaed from engaging in types of targeted affinity speech that might reveal their campaign strategy, which have become standard in election campaigns, such as party-based GOTV messages. In this regard, the law is a "prior restraint" on pure political speech.
2. The law is unconstitutionally vague and overbroad. "Campaign document" is defined as "any writing" that is distributed to 200 or more people. Well, is a private email sent to an email list in Newport Beach expressing a view on an election topic within 14 days of an election covered by the ordinance, thus requiring public filing of the email with the City Clerk within two hours of distribution to avoid jail time? Could be! And that consequence can hardly be justified by the law. Pure political speech is entitled to the highest standard of protection from governmental interference under our Constitution. For the Newport Beach law to pass constitutional muster, it must address and solve a compelling corruption problem posed by "writings" in the last 14 days of an election. It is hard to believe that Newport Beach possesses any evidence that any such writings have "corrupted" elections in Newport Beach, including private emails by residents.
3. The law is unconstitutionally arbitrary. While it applies to "writings" distributed to 200 or more people in the last 14 days of an election, such as direct-mail, flyers, and potentially emails, it does not apply to other forms of advertising that are commonly used in political campaigns in Newport Beach, such as ads in the Daily Pilot, and cable TV. In 2000, Federal District Court Judge Lawrence Karlton, after a full-blown trial on the constitutionality of a campaign law, Proposition 208, made a series of "findings of fact" about the relative "corruptibility" of various forms of political advertising in an electoral context. He found that direct-mail type advertising was no more susceptible of corruption than the other forms of political advertising. And then he enjoined Proposition 208’s attempt to regulate a specific form of direct-mail, by singling it out. In other words, what is "sauce for the goose" is "sauce for the gander." The Newport Beach City Council can’t just pick on direct-mail because it doesn’t like "hit pieces." Its regulation must be rational, across the board, and justifed by evidence that such late "hits" are so debilitating to democracy in Newport Beach Beach that the law’s obvious effect on free speech rights is justified. Don’t think they have that evidence.
4. The law’s requirements of filing copies and supporting evidence on distribution violates an express decision of the United States Supeme Court which allows for the anonymous distribution of election flyers (i.e., "writings") without governmental interference. For the benefit of the City Council, I have reprinted the syllabus of the case, McIntyre v. Ohio Elections Commission, below.
Newport Beach City Council, tear down this ordinance! Take a step in favor of freedom and send this law into the wastebasket as soon as possible!!!
SUPREME COURT OF THE UNITED STATES
McINTYRE, executor of ESTATE OF McINTYRE, DECEASED,
v.
OHIO ELECTIONS OF COMMISSION
Certiorari to the Supreme Court of Ohio
No. 93-986. Argued October 12, 1994–Decided april 19, 1995
After petitioner’s decedent distributed leaflets purporting to express the views of "CONCERNED PARENTS AND TAX PAYERS" opposing a proposed school tax levy, she was fined by respondent for violating §3599.09(A) of the Ohio Code, which prohibits the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature. The Court of Common Pleas reversed, but the Ohio Court of Appeals reinstated the fine. In affirming, the State Supreme Court held that the burdens §3599.09(A) imposed on voters’ First Amendment rights were "reasonable" and "nondiscriminatory" and therefore valid. Declaring that §3599.09(A) is intended to identify persons who distribute campaign materials containing fraud, libel, or false advertising and to provide voters with a mechanism for evaluating such materials, the court distinguished Talley v. California, 362 U.S. 60, in which this Court invalidated an ordinance prohibiting all anonymous leafletting.
Held: Section 3599.09(A)’s prohibition of the distribution of anonymous campaign literature abridges the freedom of speech in violation of the First Amendment.