No. 22-15824
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAN FRANCISCANS SUPPORTING PROP B, EDWIN M. LEE
ASIAN PACIFIC DEMOCRATIC CLUB PAC SPONSORED BY
NEIGHBORS FOR A BETTER SAN FRANCISCO ADVOCACY,
AND TODD DAVID,
Plaintiffs-Appellants,
v.
DAVID CHIU, SAN FRANCISCO ETHICS COMMISSION,
CHESA BOUDIN, AND CITY AND COUNTY OF SAN
FRANCISCO,
Defendants-Appellees.
Appeal from the U.S. District Court for the Northern District of California
Honorable Charles R. Breyer
Civil Action No. 3:22-cv-02785-CRB
BRIEF AMICUS CURIAE OF Robbin Stewart IN opposition to DEFENDANTS-APPELLEES AND URGING Reversal.
table of cases
interest of amicus
summary of argument
argument
governed by state law
schuster, drake, bongiorni, talley.
governed by federal law
janus, nifla, cruz, talley mcintyre aclf town of gilbert v reed watchtower barnette bonta.
citizens united does not apply because:
dicta, corporations, superceded, also the 5-4 part of CU.
clc brief wrong on law.
conclusion: it was abuse to discretion to deny the injunction where there is a strong likelihood on the merits because talley, schuster, mcintyre are controlling.
certifications
conclusion
table of cases
schuster,
drake,
bongiorni,
talley.
janus, JANUS v. AMERICAN FEDERATION
nifla, NIFLA. v. BECERRA, 2018
cruz
mcintyre
aclf
town of gilbert v reed
watchtower
barnette
bonta.
citizens united
clc brief
schuster,
Schuster v. Municipal Court, 109 Cal. App. 3d 887 (1980)
FN 2. Article I, section 2, of the California Constitution reads as follows: "Sec. 2. Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
People v. Drake (1979) 97 Cal. App. 3d Supp. 32 [159 Cal. Rptr. 161],
People v. Bongiorni, Crim. A. No. 4154. June 22, 1962.
Grisset,
masterpiece bakeshop
aid v open society.
interest of amicus
amicus robbin stewart was plaintiff in stewart v taylor and counsel in majors v abell, a case cited by the lower court and in the clc brief.
argument
A recent statement by the supreme court about election law comes in
fec v cruz for senate (2022).
The First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971).
This broad protection, we have explained, “reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
But there is no doubt that the law does burden First Amendment electoral speech, and any such law must at least be justified by a permissible interest. See McCutcheon v. Federal Election Comm’n, 572 U. S. 185, 210 (2014) (plurality opinion) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”).
Here, there is no permissible interest because san francisco is barred by Schuster (1980) , under the more expansive provisions of article I section two of the california constitution.
The California constitution protects speech, elections, and privacy. The Schuster case is most on point.
Schuster is part of a line of cases including Talley, Drake, Bongiorni, and Grisset.
Since disclosure requirements undoubtedly tend to restrict the freedom to distribute and consequently deter free speech, the latter right encompasses the right to remain anonymous. (Talley v. California (1960) 362 U.S. 60, 64 [4 L. Ed. 2d 559, 563, 80 S. Ct. 536, 538];Huntley v. Public Util. Com., supra, 69 Cal.2d at p. 73.) Indeed, "[t]he proposition that, under certain circumstances, anonymity is essential to the exercise of constitutional rights is not a novel one. 'Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.' (N.A.A.C.P. v. Alabama (1958) 357 U.S. 449, 462 [2 L. Ed. 2d 1488, 1499-1500, 78 S. Ct. 1163];Britt v. Superior Court , supra, 20 Cal.3d at p. 853.)" (Ghafari v. Municipal Court (1978) 87 Cal. App. 3d 255, 260 [150 Cal. Rptr. 813].) Further, "[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." (Talley v. California , supra, 362 U.S. at p. 64 [4 L.Ed.2d at p. 562].)
Exacting scrutiny is a contronym. Under McIntyre v Ohio Elections Com'n., exacting scrutiny means the fuctional equivalent of sctrict scrutiny, requiring close fit to an overiding state interest.
Under Buckley v Valeo, it had meant the opposite, a permissive approach.
Dissenting in McIntyre, Justice Scalia called exacting scrutiny a kiss of death standard.
Citizens United does not apply to this case. Citizens United's praise for disclaimers was dicta in a case about corporations. It is important to look at both parts of CU, one 5-4, the other 8-1.
Previously, corporate speech had been banned under Austin, now overturned. The court found that disclosure and disclaimer would be a less restrictive means.
San Francisco is not dealing with banned corporate speech. Citizens United does not apply. [needs quotes from cu]
Subsequently to Citizens United the court provided opinions in town of gilbert, janus, nifla and bonta, which supercede whatever CU did or didn't hold about disclaimers.
Town of Gilbert clarifies that the standard for political signs is strict scrutiny.
Under both the first amendment, and california law, san fransisco's disclaimer rules are unconstitutional.
ACLU v Heller was correct when it ruled that McIntyre is controlling.
Plaintiffs do not seek to completely invalidate the rules, only to seek an exception as to naming the top 3 sponsors on the ad. They are entitled to that relief. An injunction should issue.
There is a strong likelihood of success on the merits.The public interest requires that injunctive relief issue. The burden on the plaintiffs far exceeds the burden on defendants. Harm is irrepable. Each prong is met.
