The City of Newport Beach has one of the most threatening and unconstitutional campaign ordinances on its books I have ever seen.  And by golly, they just might repeal it tonight!

     I blogged about the law here last February and provided four detailed reasons why it was unconstitutional.  The law is Municipal Code section 1.30, which 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 is aimed at last minute "hit pieces" and is specifically 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 law became an issue in the February municipal election in Newport Beach when supporters of Measure B, the successful "City Hall in the Park" initiative, which was opposed by the majority of the City Council, reluctantly complied with the law and filed their mailers with the City Clerk; while the losing opposition campaign, endorsed by a majority of the Council, did not comply with the law.  The City has not taken any action under the ordinance to fine or jail the Council-supported opponents of the City Hall in the Park Initiative who failed to comply with the law.

     So, now the City Clerk and City Attorney are asking the Council to repeal the ordinance because they conclude it is both unconstitutional and not enforced.  Hurray!  The proposed action is Item 3 on the Council Agenda tonight.  The Council’s contemplated action will be in time for the municipal election in November, and will avoid a costly civil rights lawsuit the city is certain to lose.  Let’s hope they do the right thing and repeal!

   Government power should not intervene regarding what is "true or untrue" during an election campaign.  There is no governmental interest in policing what "truth" is in an election.  The "content" of any campaign communication should not be subject to any regulation, (just like the "content "of the Los Angeles Times).  Where "content" is libelous, individuals may resort to the court system.  But what is "true" or "untrue" is usually not libelous.  Campaign ordinances are not constitutionally valid when they affect the content or volume of speech, are vague, are arbitrary, or deny fundamental First Amendment protections.  Thus, the Newport Beach "hit piece" crime fails constitutionally as a "content based" regulation of speech.   It is constitutionally unenforceable, and whoever the councilmembers and lawyers were that allowed it to go on the books violated the constitution when they wrote the law.

     We’ll be watching to see what the Council does tonight and will keep our fingers crossed that freedom will prevail!

This entry was posted on Tuesday, July 22nd, 2008 at 12:00 am and is filed under Blog Posts.