FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NO ON E, SAN FRANCISCANS No. 22-15824
OPPOSING THE AFFORDABLE
HOUSING PRODUCTION ACT; D.C. No. 3:22-cv-
EDWIN M LEE ASIAN PACIFIC 02785-CRB
DEMOCRATIC CLUB PAC
SPONSORED BY NEIGHBORS FOR
A BETTER SAN FRANCISCO ORDER AND
ADVOCACY; TODD DAVID, AMENDED
OPINION
Plaintiffs-Appellants,
v.
DAVID CHIU, in his official capacity
as San Francisco City Attorney; SAN
FRANCISCO ETHICS
COMMISSION; BROOKE JENKINS,
in his official capacity as San
Francisco District Attorney; CITY
AND COUNTY OF SAN
FRANCISCO,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
2 NO ON E V. DAVID CHIU
Argued and Submitted December 9, 2022
San Francisco, California
Filed March 8, 2023
Amended October 26, 2023
Before: Susan P. Graber and Ronald M. Gould, Circuit
Judges. *
Order;
Opinion by Judge Graber;
Dissent from Order by Judge Collins;
Dissent from Order by Judge VanDyke
SUMMARY **
First Amendment/Political Advertising
The panel issued (1) an order amending its opinion filed
on March 8, 2023, denying a petition for rehearing en banc,
and ordering that no future petitions will be entertained; and
(2) an amended opinion affirming the district court’s denial
of Plaintiffs’ motion for a preliminary injunction seeking to
enjoin enforcement of a San Francisco ordinance that
imposes a secondary-contributor disclaimer requirement on
*
Judge Watford, who was on the panel that issued the original opinion,
left the court on May 31, 2023. In accordance with General Order 3.2(h),
this Order and the Amended Opinion are issued by the remaining panel
members as a quorum pursuant to 28 U.S.C. § 46(d).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NO ON E V. DAVID CHIU 3
certain political advertisements, in addition to California’s
top contributor disclaimer requirement.
Under California law, certain political advertisements
run by a committee must name the committee’s top financial
contributors. The City and County of San Francisco added
a secondary-contributor disclaimer requirement that
compels certain committees, in their political
advertisements, also to list the major donors to those top
contributors. Plaintiffs, who supported the passage of a
ballot measure in the June 7, 2022, election, alleged that the
secondary-contributor disclaimer requirement violates the
First Amendment, both on its face and as applied against
Plaintiffs.
The panel first determined that even though the June
2022 election had occurred, this appeal was not moot
because the controversy was capable of repetition yet
evading review.
The panel held that Plaintiffs had not shown a likelihood
of success on the merits of their First Amendment
claim. Applying exacting scrutiny, the panel held that
because the interest in learning the source of funding for a
political advertisement extends past the entity that is directly
responsible, the challenged ordinance was substantially
related to the governmental interest in informing voters of
the source of funding for election-related
communications. Given the strength of the governmental
interest, the panel was not persuaded by Plaintiffs’ argument
that the size and duration of the required disclaimers
displaced an excessive amount of Plaintiffs’ speech and
presented an impermissible burden on their First
Amendment rights. The requirements were closely tailored
to Defendants’ interest of informing the public about the
4 NO ON E V. DAVID CHIU
source of funding and were not greater than necessary to
accomplish that goal. Plaintiffs’ argument that the
secondary-contributor requirement violated their right to
freedom of association was likewise insufficient to outweigh
the strength of the governmental interests.
Addressing the remaining preliminary injunction factors,
the panel concluded that the public interest and the balance
of hardships weighed in favor of Defendants.
Dissenting from the denial of rehearing en banc, Judge
Collins, joined by Judges Callahan, Ikuta, Bennett, R.
Nelson, Lee, Bress, Bumatay and VanDyke, wrote that the
panel’s decision warranted rehearing en banc because the
ordinance permitted San Francisco to commandeer political
advertising to an intrusive degree and greatly exceeded what
settled caselaw would tolerate even in the context of
commercial speech, let alone political speech, which is
entitled to a higher degree of constitutional protection. Judge
Collins believes the ordinance is unduly burdensome and
violates the First Amendment.
Dissenting from the denial of rehearing en banc, Judge
VanDyke, joined by Judges Callahan, Ikuta, Bennett, R
Nelson, Collins, Lee, Bress, and Bumatay wrote that the
ordinance seriously burdened Plaintiffs’ association and
speech rights and will inevitably result in voter
confusion. In compelling the on-ad disclosures, the
ordinance will cause the public to naturally infer second-
degree associations between political speakers and
secondary contributors, notwithstanding the absence of any
logical basis to infer such an association actually exists.
NO ON E V. DAVID CHIU 5
COUNSEL
Alan Gura (argued), Institute for Free Speech, Washington,
D.C.; James R. Sutton, The Sutton Law Firm, San Francisco,
California; for Plaintiff-Appellant.
Tara M. Steeley and Wayne K. Snodgrass, Deputy City
Attorneys; David Chiu, City Attorney; San Francisco City
Attorney’s Office, City and County of San Francisco, San
Francisco, California; for Defendant-Appellee.
Tara Malloy and Megan P. McAllen, Campaign Legal
Center, Washington, D.C., for Amicus Curiae American
Legal Center.
Daniel R. Suhr and Reilly Stephens, Liberty Justice Center,
Chicago, Illinois, for Amicus Curiae Liberty Justice Center.
ORDER
The Opinion filed on March 8, 2023, is hereby amended.
The amended opinion will be filed concurrently with this
order.
Appellants filed a petition for rehearing en banc, Docket
No. 41. Judge Graber recommends denial of the petition for
rehearing en banc and Judge Gould so votes.
The full court was advised of the petition for rehearing
en banc. A judge of the court requested a vote on en banc
rehearing. The matter failed to receive a majority of votes
of non-recused active judges in favor of en banc
consideration. See Fed. R. App. P. 35. The petition for
rehearing en banc is DENIED. No further petitions for
rehearing or rehearing en banc will be entertained.
6 NO ON E V. DAVID CHIU
OPINION
GRABER, Circuit Judge:
In response to the growing prevalence of money in
politics, many governments have required groups that run
political advertisements to identify their funding sources
publicly. Under California law, certain political
advertisements run by a committee must name the
committee’s top contributors. The City and County of San
Francisco adds a secondary-contributor disclaimer
requirement that compels certain committees, in their
political advertisements, also to list the major donors to those
top contributors. 1
Plaintiffs—a political committee that runs ads, the
committee’s treasurer, and a contributor to the committee—
seek to enjoin enforcement of San Francisco’s ordinance.
They allege that the secondary-contributor requirement
violates the First Amendment. The district court held that
Plaintiffs are unlikely to succeed on the merits and denied
Plaintiffs’ request for a preliminary injunction. Reviewing
the denial of a preliminary injunction for abuse of discretion
and the underlying legal principles de novo, Fyock v.
Sunnyvale, 779 F.3d 991, 995 (9th Cir. 2015), we agree with
the district court. Plaintiffs have not shown a likelihood of
1
The parties in this case distinguish between “disclaimers” (statements
at the time of the advertisement, identifying who is funding the ad) and
“disclosures” (public reports filed with government entities). Although
that distinction is recognized in the case law, see, e.g., Citizens United
v. FEC, 558 U.S. 310, 366–67 (2010), some courts use the terms
interchangeably. Where relevant, we clarify whether laws considered by
prior courts required disclosures or disclaimers, consistent with the
foregoing definitions.
NO ON E V. DAVID CHIU 7
success on the merits. San Francisco’s requirement is
substantially related to the governmental interest in
informing voters of the source of funding for election-related
communications. The ordinance does not create an
excessive burden on Plaintiffs’ First Amendment rights
relative to that interest, and it is sufficiently tailored to the
governmental interest. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
A. California Political Reform Act
The California Political Reform Act defines a
“committee” as “any person or combination of persons”
who, in a calendar year, receives contributions totaling
$2,000 or more; makes independent expenditures totaling
$1,000 or more; or makes contributions totaling $10,000 or
more to, or at the behest of, candidates or committees. Cal.
Gov’t Code § 82013. A “primarily formed committee” is
defined as a committee that receives $2,000 or more in
contributions in a calendar year and is formed or exists
primarily to support or oppose a single candidate, a single
measure, a group of candidates being voted on in the same
election, or two or more measures being voted on in the same
election. Id. § 82047.5. Every committee, whether or not it
is primarily formed, must file a statement of organization
with the California Secretary of State and the relevant local
filing officer, id. § 84101(a), which in this case is the San
Francisco Ethics Commission. See S.F. Campaign &
Governmental Conduct Code (“S.F. Code”) § 1.112(a)(1).
Committees must file semiannual statements, Cal. Gov’t
Code § 84200(a), and must file two preelection statements,
one at least 40 days before an election and the second at least
12 days before an election, id. §§ 84200.5, 84200.8. Among
other requirements, each of those campaign statements must
8 NO ON E V. DAVID CHIU
include “[t]he total amount of contributions received during
the period covered by the campaign statement and the total
cumulative amount of contributions received.” Id.
§ 84211(a). If any donor contributes money to the
committee during a reporting period and has given aggregate
contributions of $100 or more, then the report must include
that donor’s name, address, occupation, and employer, plus
the dates and amounts of the donor’s contributions during
the period and the donor’s total aggregate contributions. Id.
§ 84211(f).
California law also requires specific disclaimers in
political advertisements. Id. §§ 84501–84511. An
“advertisement” is defined as “any general or public
communication that is authorized and paid for by a
committee for the purpose of supporting or opposing a
candidate or candidates for elective office or a ballot
measure or ballot measures.” Id. § 84501(a)(1).
Advertisements must include the words “[a]d paid for by
[the name of the committee].” Id. § 84502(a)(1). They also
must state “committee major funding from,” followed by the
names of the top contributors to the committee. Id.
§ 84503(a). “Top contributors” are defined as “the persons
from whom the committee paying for an advertisement has
received its three highest cumulative contributions of fifty
thousand dollars ($50,000) or more.” Id. § 84501(c)(1).
Depending on the medium, the advertisement must follow
certain formatting requirements. See id. §§ 84504.1 (video);
84504.2 (print); 84504.4 (radio and telephone); 84504.3
(electronic media); 84504.6 (online platforms).
B. San Francisco’s Proposition F
On November 5, 2019, San Francisco voters passed
Proposition F. Referred to by proponents as the “Sunlight
NO ON E V. DAVID CHIU 9
on Dark Money Initiative,” Proposition F changed the
disclaimer requirements for advertisements paid for by
independent political committees, among other provisions.
After the passage of Proposition F, “all committees making
expenditures which support or oppose any candidate for City
elective office or any City measure” must comply with the
City’s new disclaimer requirements, in addition to the state’s
requirements. S.F. Code § 1.161(a).
Under the new ordinance, ads run by primarily formed
independent expenditure and ballot measure committees
must include a disclaimer listing their top three contributors
of $5,000 or more. Id. § 1.161(a)(1). Additionally, “[i]f any
of the top three major contributors is a committee, the
disclaimer must also disclose both the name of and the dollar
amount contributed by each of the top two major
contributors of $5,000 or more to that committee.” Id. The
ad also must inform voters that “[f]inancial disclosures are
available at sfethics.org” or, if an audio ad, provide a
substantially similar statement that specifies the website.
S.F. Code § 1.161(a)(2).
Printed disclaimers that identify a “major contributor or
secondary major contributor” must list the dollar amount of
relevant contributions made by each named contributor. S.F.
Code § 1.161(a)(1); S.F. Ethics Comm’n Reg. (“S.F. Reg.”)
1.161-3(a)(4). Print ads must include the disclaimers in text
that is “at least 14-point, bold font.” S.F. Code
§ 1.161(a)(3). Audio and video advertisements must begin
by speaking the required disclaimers of major contributors
and secondary major contributors, but need not disclose the
dollar amounts of those donors’ contributions. Id.
§§ 1.161(a)(5); 1.162(a)(3). In addition, video ads must
display a text banner that contains similar information to that
10 NO ON E V. DAVID CHIU
required in print ads. Cal. Gov’t Code § 84504.1; S.F. Code
§ 1.161(a)(1). 2
Violations of the City’s campaign finance laws are
punishable by civil, criminal, and administrative penalties.
S.F. Code § 1.170. A committee’s treasurer may be held
personally liable for violations by the committee. Id.
§ 1.170(g). Any individual who suspects a possible
violation may file a complaint with the Ethics Commission,
City Attorney, or District Attorney. Id. § 1.168(a); see id.
§ 1.168(b) (providing for enforcement through civil action);
San Francisco Charter, appendix C, § C3.699-13 (Ethics
Commission procedures for investigations and enforcement
proceedings).
C. Earlier Litigation Challenging Proposition F
In 2020, Todd David founded Yes on Prop B, Committee
in Support of the Earthquake Safety and Emergency
Response Bond. 3 David and Yes on Prop B challenged San
Francisco’s secondary-contributor requirement in the lead-
up to the March 3, 2020 election. On February 20, 2020, the
district court enjoined the application of that requirement to
the plaintiffs’ smaller and shorter advertisements “because
they [left] effectively no room for pro-earthquake safety
2
The City recently amended the statute to provide for two exemptions
from the ordinance’s secondary-contributor requirements. First, the
requirement to disclose secondary major contributors does not apply to
print advertisements that are 25 square inches or smaller. S.F. Code
§ 1.161(a)(1)(A). Second, the requirement to disclose secondary major
contributors does not apply to the spoken disclaimer in an audio or video
advertisement that is 30 seconds or less. Id. § 1.161(a)(1)(B).
3
The Prop B at issue in the 2020 litigation concerned an earthquake
safety and emergency response bond and is unrelated to the Prop B that
was originally at issue in this litigation.
NO ON E V. DAVID CHIU 11
messaging.” Yes on Prop B v. City & County of San
Francisco, 440 F. Supp. 3d 1049, 1051, 1062 (N.D. Cal.
2020). The district court, however, concluded that the
challenged ordinance was “not an unconstitutional burden
on larger or longer advertising” and declined to enjoin the
secondary-contributor disclaimer requirement on its face or
as applied to the plaintiffs’ larger ads. Id. at 1051, 1061–62.
On October 21, 2020, in an unpublished disposition, we
dismissed the plaintiffs’ appeal on the ground of mootness.
Yes on Prop B v. City & County of San Francisco, 826 F.
App’x 648 (9th Cir. 2020). The plaintiffs argued that the
“capable of repetition, yet evading review exception”
applied, but we held that the case was moot because the
plaintiffs had not “shown that ‘there is a reasonable
expectation that the same complaining party will be subject
to the same action again.’” Id. at 649 (quoting
Protectmarriage.com–Yes on 8 v. Bowen, 752 F.3d 827, 836
(9th Cir. 2014)). We stressed that the record was “devoid of
any detail” that plaintiffs would run advertisements in the
future, particularly in the upcoming November 2020
election. Id. Thus, we concluded that, “[a]t best, [the
plaintiffs] have shown only that there is a theoretical
possibility that the same controversy will recur with respect
to them.” Id.
D. Current Litigation
This action was brought by three plaintiffs: (1) No on E,
San Franciscans Opposing the Affordable Housing
Production Act (“the Committee”), a primarily formed
independent expenditure committee that runs ads subject to
12 NO ON E V. DAVID CHIU
the secondary-contributor requirement; 4 (2) Todd David, the
founder and treasurer of No on E (and the founder of Yes on
Prop B); and (3) Edwin M. Lee Asian Pacific Democratic
Club PAC Sponsored by Neighbors for a Better San
Francisco Advocacy (“Ed Lee Dems”), a committee and a
direct contributor to No on E, whose major donors would be
subject to disclosure in ads under the San Francisco
ordinance. David established the Committee to support the
passage of Prop B in the June 7, 2022 election. The
Committee sought to communicate its message by
publishing mailers, print ads in newspapers, and digital ads
on the internet.
As of May 10, 2022, the Committee had raised a total of
$15,000 from three donors, each of which contributed
$5,000. Two of those donors were committees that, in turn,
had donors that had made contributions of more than $5,000.
Thus, according to the examples provided by Plaintiffs, San
Francisco’s ordinance would require the following
disclaimer on the Committee’s print and video
advertisements:
Ad paid for by San Franciscans Supporting Prop. B 2022.
Committee major funding from:
1. Concerned Parents Supporting the Recall of Collins,
Lopez and Moliga ($5,000) – contributors include
4
The lead plaintiff in this suit was known as “San Franciscans
Supporting Prop B” throughout the district court litigation. On appeal,
and after the conclusion of the June 7, 2022 election, the case caption
was updated to reflect the fact that the Committee rededicated itself to
opposing Proposition E and changed its name, as required by California
Government Code section 84107.
NO ON E V. DAVID CHIU 13
Neighbors for a Better San Francisco Advocacy Committee
($468,800), Arthur Rock ($350,000).
2. BOMA SF Ballot Issues PAC ($5,000).
3. Edwin M. Lee Asian Pacific Democratic Club PAC
sponsored by Neighbors for a Better San Francisco
Advocacy ($5,000) – contributors include Neighbors for a
Better San Francisco Advocacy Committee ($100,000),
David Chiu for Assembly 2022 ($10,600).
Financial disclosures are available at sfethics.org.
On May 11, 2022, Plaintiffs filed this action. Plaintiffs
allege that the secondary-contributor disclaimer requirement
violates the First Amendment, both on its face and as applied
against Plaintiffs. In their prayer for relief, Plaintiffs request
a declaration that the requirement violates the First
Amendment, on its face and as applied to Plaintiffs; an
injunction barring enforcement of the secondary-contributor
requirement, in general and against Plaintiffs specifically;
and nominal damages.
On May 12, 2022, Plaintiffs filed a motion for a
preliminary injunction. Plaintiffs submitted a proposed
order requesting that the court “preliminarily [enjoin]
Defendants and their agents, officers, and representatives
from enforcing against Plaintiffs the on-communication
disclosure requirements for secondary donors at S.F. Code
§ 1.161(a).” In support of the motion for a preliminary
injunction, David submitted a declaration stating that,
“[b]ecause Concerned Parents and Ed Lee Dems are
committees, they have contributed $5,000 to the Committee,
and they both have donors who have given them $5,000 or
more, San Francisco’s law will require that our Committee
report those secondary donors on our communications.”
14 NO ON E V. DAVID CHIU
On June 1, 2022, the district court denied Plaintiffs’
motion. Plaintiffs timely appeal. We have jurisdiction over
this interlocutory appeal pursuant to 28 U.S.C. § 1292.
DISCUSSION
To obtain a preliminary injunction, a plaintiff must
establish “that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter
v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). On appeal,
Plaintiffs argue primarily that they have demonstrated a
likelihood of success on the merits. See Garcia v. Google,
Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc) (“The first
factor under Winter is the most important—likely success on
the merits.”). Below, we address (A) mootness, (B)
Plaintiffs’ likelihood of success on the merits, and (C) the
remaining Winter factors.
A. Mootness
Before turning to the merits, we first must establish that
we have jurisdiction. “[A] federal court loses its jurisdiction
to reach the merits of a claim when the court can no longer
effectively remedy a present controversy between the
parties.” Protectmarriage.com—Yes on 8, 752 F.3d at 836.
Defendants maintain that, because the June 2022 election
has occurred, Plaintiffs can no longer receive meaningful
relief and this appeal is moot. Although the June 2022
election has passed, this appeal is not moot because this
controversy is “capable of repetition, yet evading review.”
FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007).
The “capable of repetition, yet evading review”
exception to mootness applies when “(1) the challenged
NO ON E V. DAVID CHIU 15
action is in its duration too short to be fully litigated prior to
cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject
to the same action again.” Id. (citation and internal quotation
marks omitted). Defendants do not dispute that Plaintiffs
have satisfied the first prong of that test. See
Protectmarriage.com—Yes on 8, 752 F.3d at 836
(describing an election as a controversy of inherently limited
duration).
“The second prong of the capable of repetition exception
requires a reasonable expectation or a demonstrated
probability that the same controversy will recur involving
the same complaining party.” Wis. Right to Life, 551 U.S.
at 463 (citation and internal quotation marks omitted). But
that standard does not require Plaintiffs to establish a
certainty that they will be subject to the same enforcement:
“Requiring repetition of every ‘legally relevant’
characteristic of an as-applied challenge—down to the last
detail—would effectively overrule this statement by making
this exception unavailable for virtually all as-applied
challenges.” Id. Plaintiffs bear the burden of showing that
the “capable of repetition” prong is satisfied. Lee v.
Schmidt-Wenzel, 766 F.2d 1387, 1390 (9th Cir. 1985).
On this record, Plaintiffs have met that burden with
respect to at least one plaintiff. 5 David has a demonstrated
history of establishing committees that run advertisements
that are subject to the secondary-contributor requirement,
5
Although Plaintiffs’ motion for a preliminary injunction did not include
a facial challenge, the relief sought by Plaintiffs was not limited to the
June 2022 election. Instead, Plaintiffs asked the court to preliminarily
enjoin Defendants from enforcing the secondary-contributor
requirement against Plaintiffs indefinitely.
16 NO ON E V. DAVID CHIU
and he has twice engaged in litigation on this same issue. He
also has clearly expressed his intent to continue those
activities, unlike the plaintiffs in the earlier suit. Plaintiffs’
complaint alleges that David “will engage in materially and
substantially similar activity in the future, establishing
committees and using them to speak about San Francisco
candidates and measures.” (Emphasis added). In support of
Plaintiffs’ motion for a preliminary injunction, David
averred that he “will continue to create primarily formed
committees in future elections, to share ads and
communications substantially and materially similar to those
we wanted to share in 2020 and that we want to share now.”
(Emphasis added).
Defendants offer no persuasive reason to doubt David’s
affidavit, which is supported by his past practice. See Wis.
Right to Life, 551 U.S. at 463–64 (holding that there was a
reasonable expectation that the same controversy would
recur where plaintiff “credibly claimed that it planned on
running ‘materially similar’ future targeted broadcast ads”
and “sought another preliminary injunction based on an ad it
planned to run” during another blackout period).
Accordingly, this appeal is not moot, because it falls within
the exception for controversies that are “capable of
repetition, yet evading review.” See Hum. Life of Wash.
Inc. v. Brumsickle, 624 F.3d 990, 1001–02 (9th Cir. 2010)
(concluding that there was a reasonable expectation that the
controversy would recur because the plaintiff was a
politically active organization that had been heavily
involved in public debates in the past and intended to
undertake future communications); Porter v. Jones, 319 F.3d
483, 490 (9th Cir. 2003) (rejecting mootness argument
because plaintiff had expressed intent to create a similar
website in future elections); Baldwin v. Redwood City, 540
NO ON E V. DAVID CHIU 17
F.2d 1360, 1365 (9th Cir. 1976) (holding that an issue is
“capable of repetition, yet evading review” where the record
established that plaintiff had continuing interest in and past
practices of participating in local political campaigns by
creating signs).
B. Likelihood of Success on the Merits
Plaintiffs seek a preliminary injunction on the ground
that the secondary-contributor disclaimer requirement
violates the First Amendment. We hold that the district court
acted within its discretion to conclude that Plaintiffs did not
establish a likelihood of success on the merits.
The district court applied “exacting scrutiny,” which
“requires a ‘substantial relation’ between the disclosure
requirement and a ‘sufficiently important’ governmental
interest.” Citizens United v. FEC, 558 U.S. 310, 366–67
(2010) (quoting Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per
curiam)). On de novo review, Fyock, 779 F.3d at 995, we
hold that exacting scrutiny is the correct legal standard.
Regardless of the beliefs sought to be advanced by
association, “compelled disclosure requirements are
reviewed under exacting scrutiny.” Ams. for Prosperity
Found. v. Bonta, 141 S. Ct. 2373, 2383 (2021) (opinion of
Roberts, C.J.); see also id. at 2396 (applying exacting
scrutiny to First Amendment challenge to compelled
disclosure) (Sotomayor, J., dissenting). In the electoral
context, both the Supreme Court and our court have
consistently applied exacting scrutiny to compelled
disclosure requirements and on-advertisement disclaimer
requirements. See Citizens United, 558 U.S. at 366–67
(holding that disclaimer and disclosure requirements are
subject to exacting scrutiny); John Doe No. 1 v. Reed, 561
U.S. 186, 196 (2010) (applying exacting scrutiny to
18 NO ON E V. DAVID CHIU
disclosure requirement); Buckley, 424 U.S. at 64 (requiring
that compelled disclosure requirements survive exacting
scrutiny); Davis v. FEC, 554 U.S. 724, 744 (2008)
(evaluating whether disclosure requirements satisfy exacting
scrutiny); Brumsickle, 624 F.3d at 1005 (applying exacting
scrutiny to Washington law that required disclaimers on
political advertising and disclosure of certain contributions
and expenditures); see also Family PAC v. McKenna, 685
F.3d 800, 805–06 (9th Cir. 2012) (“Disclosure requirements
are subject to exacting scrutiny.”). 6
Plaintiffs’ argument to the contrary is unavailing.
Plaintiffs take the position that disclaimer and disclosure are
“terms of art,” and argue that the City’s ordinance should be
reviewed under strict scrutiny because it is a “hybrid
disclaimer/disclosure requirement.” But Plaintiffs cite no
authority that makes a similar distinction.7 Indeed, they
6
In ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004), we held
that strict scrutiny applied to statutes that affect the content of election
communications. 378 F.3d at 987. But we have since acknowledged
that intervening Supreme Court decisions clarified that we apply
exacting scrutiny to disclosure and disclaimer requirements. See
Brumsickle, 624 F.3d at 1005 (citing John Doe No. 1, 561 U.S. at 196,
and Citizens United, 558 U.S. at 366–67).
7
Citing Americans for Prosperity Foundation v. Bonta, Plaintiffs further
argue that San Francisco’s “hybrid” requirement should be reviewed
under strict scrutiny because “[t]he Supreme Court recently signaled that
it may be increasing the scrutiny given to any disclosure regime.” This
reading of Americans for Prosperity Foundation clashes with a plain
reading of the case and the manner in which other courts have applied it
to disclaimer laws. See, e.g., Gaspee Project v. Mederos, 13 F.4th 79,
95 (1st Cir. 2021), cert. denied, 142 S. Ct. 2647 (2022); Smith v. Helzer,
No. 3:22-CV-00077-SLG, 2022 WL 2757421, at *10 (D. Alaska July 14,
2022), appeal docketed, No. 22-35612 (9th Cir. argued Feb. 9, 2023).
We hold that Americans for Prosperity Foundation does not alter the
existing exacting scrutiny standard.
NO ON E V. DAVID CHIU 19
acknowledge that the Supreme Court has applied exacting
scrutiny to both disclosure rules, John Doe No. 1, 561 U.S.
at 196, and disclaimer requirements, Citizens United, 558
U.S. at 366–67.
The concerns that Plaintiffs suggest are uniquely
implicated in this case animate the entirety of the exacting
scrutiny standard: “This type of scrutiny is necessary even
if any deterrent effect on the exercise of First Amendment
rights arises, not through direct government action, but
indirectly as an unintended but inevitable result of the
government’s conduct in requiring disclosure.” Buckley,
424 U.S. at 65. Courts have upheld other laws, even where
there was some deterrent effect, because “[d]isclaimer and
disclosure requirements may burden the ability to speak, but
they ‘impose no ceiling on campaign-related activities,’
Buckley, 424 U.S., at 64, and ‘do not prevent anyone from
speaking,’ McConnell v. FEC, 540 U.S. 93, 201 (2003).”
Citizens United, 558 U.S. at 366 (citations altered). Any
argument that the secondary-contributor requirement
violates the First Amendment because of the length and
content of the disclaimer is appropriately addressed as part
of the exacting scrutiny analysis.
To survive exacting scrutiny, a law must satisfy all three
steps of the inquiry. The threshold question is whether there
is a “substantial relation” between the challenged law and a
“sufficiently important” governmental interest. Citizens
United, 558 U.S. at 366–67 (citation and internal quotation
marks omitted); see Ams. for Prosperity Found., 141 S. Ct.
at 2384 (describing a substantial relation as “necessary but
not sufficient”). Next, “[t]o withstand this scrutiny, the
strength of the governmental interest must reflect the
seriousness of the actual burden on First Amendment
rights.” Ams. for Prosperity Found., 141 S. Ct. at 2383
20 NO ON E V. DAVID CHIU
(quoting John Doe No. 1, 561 U.S. at 196) (internal
quotation marks omitted). Finally, “[w]hile exacting
scrutiny does not require that disclosure regimes be the least
restrictive means of achieving their ends, it does require that
they be narrowly tailored to the government’s asserted
interest.” Id.
Below, we assess (1) the relation between the secondary-
contributor disclaimer requirement and the governmental
interest; (2) whether the strength of that interest reflects the
seriousness of the burden on Plaintiffs’ First Amendment
rights; and (3) whether San Francisco’s ordinance is
narrowly tailored to that interest.
1. Relation Between the Secondary-Contributor
Disclaimer Requirement and Defendants’
Interest
Defendants take the position that the secondary-
contributor requirement serves their interest in providing
information to voters about the source of election-related
spending. A committee can circumvent California’s on-
advertisement disclaimer requirement and avoid including
its top donors in a disclaimer by providing funding to another
committee instead of running an advertisement directly.
Defendants contend that the secondary-contributor
requirement satisfies voters’ need for additional information
by making it more difficult to hide the sources of funding for
political advertisements.
Courts have long recognized the governmental interest
in the disclosure of the sources of campaign funding:
[D]isclosure provides the electorate with
information as to where political campaign
money comes from and how it is spent by the
NO ON E V. DAVID CHIU 21
candidate in order to aid the voters in
evaluating those who seek federal office. It
allows voters to place each candidate in the
political spectrum more precisely than is
often possible solely on the basis of party
labels and campaign speeches. The sources
of a candidate’s financial support also alert
the voter to the interests to which a candidate
is most likely to be responsive and thus
facilitate predictions of future performance in
office.
Buckley, 424 U.S. at 66–67 (internal quotation marks and
citation omitted); see Cal. Pro-Life Council, Inc. v.
Randolph, 507 F.3d 1172, 1179 n.8 (9th Cir. 2007) (“[I]n the
context of disclosure requirements, the government’s
interest in providing the electorate with information related
to election and ballot issues is well-established.”), abrogated
on other grounds as stated in Brumsickle, 624 F.3d at 1013.
“[T]he people in our democracy are entrusted with the
responsibility for judging and evaluating the relative merits
of conflicting arguments.” First Nat’l Bank of Boston v.
Bellotti, 435 U.S. 765, 791 (1978). As the role of money in
politics has expanded, the public is faced with a “cacophony
of political communications through which . . . voters must
pick out meaningful and accurate messages.” Cal. Pro-Life
Council, Inc. v. Getman, 328 F.3d 1088, 1105 (9th Cir.
2003). Understanding what entity is funding a
communication allows citizens to make informed choices in
the political marketplace. Alaska Right to Life Comm. v.
Miles, 441 F.3d 773, 793 (9th Cir. 2006); see Bellotti, 435
U.S. at 791–92 (“[The public] may consider, in making their
judgment, the source and credibility of the advocate.”);
22 NO ON E V. DAVID CHIU
Getman, 328 F.3d at 1105 (“Given the complexity of the
issues and the unwillingness of much of the electorate to
independently study the propriety of individual ballot
measures, we think being able to evaluate who is doing the
talking is of great importance.”).
We have “repeatedly recognized an important (and even
compelling) informational interest in requiring ballot
measure committees to disclose information about
contributions.” Family PAC, 685 F.3d at 806. Disclosure
of who is speaking “enables the electorate to make informed
decisions and give proper weight to different speakers and
messages.” Citizens United, 558 U.S. at 371. “An appeal to
cast one’s vote a particular way might prove persuasive
when made or financed by one source, but the same
argument might fall on deaf ears when made or financed by
another.” Brumsickle, 624 F.3d at 1008. Thus, we conclude
that, as in other cases, Defendants have a strong
governmental interest in informing voters about who funds
political advertisements.
It follows that the secondary-contributor requirement is
substantially related to that interest. We have previously
recognized that providing information to the electorate may
require looking beyond the named organization that runs the
advertisement. In ACLU of Nevada v. Heller, 378 F.3d 979
(9th Cir. 2004), for example, the plaintiffs challenged a
Nevada statute that required printed election-related
communications to include the names of the businesses,
social organizations, or legal entities responsible for those
communications. 378 F.3d at 981–83. We recognized that
“individuals and entities interested in funding election-
related speech often join together in ad hoc organizations
with creative but misleading names.” Id. at 994. Thus, we
concluded that, “[w]hile reporting and disclosure
NO ON E V. DAVID CHIU 23
requirements can expose the actual contributors to such
groups and thereby provide useful information concerning
the interests supporting or opposing a ballot proposition or a
candidate, simply supplying the name and address of the
organization on the communication itself does not provide
useful information—and that is all the Nevada Statute
requires.” Id.
While Heller is an anonymous speech case, we agree
with Heller’s reasoning, and find it relevant to the election
disclaimer context. The interests in “where political
campaign money comes from,” Buckley, 424 U.S. at 66
(citation omitted), and “in learning who supports and
opposes ballot measures,” Family PAC, 685 F.3d at 806,
extend beyond just those organizations that support a
measure or candidate directly. Plaintiffs do not challenge
California’s law that requires an on-advertisement
disclaimer listing the top three donors to a committee. But
those donors are often committees in their own right. The
secondary-contributor requirement is designed to go beyond
the “ad hoc organizations with creative but misleading
names” and instead “expose the actual contributors to such
groups.” Heller, 378 F.3d at 994; see McConnell v. FEC,
540 U.S. 93, 128 (2003) (noting that “sponsors of [political]
ads often used misleading names to conceal their identity”
and providing examples), overruled on other grounds by
Citizens United, 558 U.S. at 365–66. In the context of San
Francisco municipal elections, 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. Because
the interest in learning the source of funding for a political
advertisement extends past the entity that is directly
24 NO ON E V. DAVID CHIU
responsible, the challenged ordinance is substantially related
to the governmental interest in informing the electorate.
Notwithstanding that relationship, Plaintiffs contend that
the challenged ordinance actually undermines that interest.
They take the position that the secondary-contributor
requirement could cause confusion because a committee
must list donors who may not have any position on the issue
that the ad is addressing or who may not have known that
their donation would be used to promote those views. But
Plaintiffs provide no factual basis for their assumption that
San Francisco voters are unable to distinguish between
supporting a group that broadcasts a statement and
supporting the statement itself. See Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 454–55 (2008)
(requiring more than “sheer speculation” of voter
confusion). Additionally, adopting Plaintiffs’ position could
call into question the logic underlying decisions that uphold
disclosure and disclaimer requirements as applied to primary
donors. Those cases emphasize that the laws at issue further
the governmental interest in revealing the source of
campaign funding, not ensuring that every donor agrees with
every aspect of the message. Brumsickle, 624 F.3d at 1005–
08; Getman, 328 F.3d at 1104–07.
Plaintiffs’ final argument—that any informational
interest furthered by San Francisco’s ordinance is
outweighed by the corresponding limitation on time
available for other speech—is similarly unavailing. It is
well-established that “[d]isclaimer and disclosure
requirements may burden the ability to speak, but they
impose no ceiling on campaign-related activities, and do not
prevent anyone from speaking.” Citizens United, 558 U.S.
at 366 (internal quotation marks and citations omitted).
Even if Plaintiffs are correct that the governmental interest
NO ON E V. DAVID CHIU 25
is somewhat diminished in this instance because the
challenged ordinance requires disclosure of secondary
contributors instead of direct donors, that principle still
applies.
Thus, we hold that the district court did not abuse its
discretion by concluding that the secondary-contributor
disclaimer requirement is substantially related to
Defendants’ informational interest.
2. Burden On First Amendment Rights
“To withstand [exacting] scrutiny, ‘the strength of the
governmental interest must reflect the seriousness of the
actual burden on First Amendment rights.’” John Doe No.
1, 561 U.S. at 196 (quoting Davis, 554 U.S. at 744). It is
well-established that there is an important governmental
interest in providing voters with information about the
source of funding for political advertisements. Buckley, 424
U.S. at 66–67; Heller, 378 F.3d at 994; Family PAC, 685
F.3d at 806. Given the strength of that interest, we are not
persuaded by either of Plaintiffs’ arguments that San
Francisco’s ordinance impermissibly burdens their First
Amendment rights.
First, Plaintiffs assert that the required disclaimer
displaces an excessive amount of speech. As noted above,
Plaintiffs wished to use video ads and print ads. According
to David, the spoken disclaimer in video ads would take up
100% of a 15-second ad, 100% of a 30-second ad, and 53-
55% of a 60-second ad. David averred that the written
disclaimer in video ads would take up between 35% and 51%
of the screen for up to 33% of the ad’s duration (either 10
seconds of an ad that is 30 seconds or longer, or the first 5
seconds of a 15-second ad). Finally, David declared that the
required disclaimer would take up 100% of a two-inch by
26 NO ON E V. DAVID CHIU
four-inch ad, 70% of a five-inch by five-inch ad, 35% of a
five-inch by ten-inch ad, and 23% of the face of an 8.5-inch
by 11-inch mailer.
In this litigation, Defendants consistently have stated
that they would not enforce the disclaimer requirement
where disclaimers take up most or all of an advertisement’s
space or duration. When Plaintiffs moved for an injunction
in this action, Defendants offered to agree not to enforce San
Francisco’s ordinance with respect to print ads that were
five-inches by five-inches or smaller, or to spoken
disclaimers on digital and audio advertisements of 60
seconds or less. After Plaintiffs refused that offer,
Defendants again took the position that they would not
enforce the challenged ordinance where the “required
disclaimer would consume the majority of Plaintiffs’
advertisement.” We thus consider only those ads in which
the disclaimer would take up less than a majority of the ad.
The required disclaimers that remain subject to enforcement
are (1) the written disclaimer on video ads that would take
up a portion of the screen for up to 33% of the ad’s duration;
and (2) the written disclaimer that would take up 35% of a
five-inch by ten-inch ad or 23% of an 8.5-inch by 11-inch
mailer.
We first consider the written disclaimer that the
ordinance would require Plaintiffs to display for up to 33%
of a video ad’s duration. In Citizens United, the Supreme
Court upheld a law that required 40% of a video
advertisement’s duration to be devoted to the display of a
written disclaimer. 558 U.S. at 320, 366, 367–68. In the
earlier litigation challenging San Francisco’s ordinance, the
district court relied on Citizens United and concluded that
the secondary-contributor requirement was not unduly
burdensome for ads in which the disclaimer took up less than
NO ON E V. DAVID CHIU 27
40% of the ad. Yes on Prop B, 440 F. Supp. 3d at 1056–57.
The court found that, for those ads, the remaining space was
sufficient to communicate the plaintiffs’ political message.
Id. We find that reasoning to be persuasive. Plaintiffs have
not shown that they are likely to succeed on the merits of
their argument that the secondary-contributor requirement is
an impermissible burden on speech because the display of a
written disclaimer for up to one-third of a video ad’s duration
is excessive.
Nor are Plaintiffs likely to succeed on their claim that the
required disclaimers’ occupation of up to 35% of a printed
ad impermissibly burdens their speech. Plaintiffs rely
heavily on American Beverage Ass’n v. City & County of
San Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc), to
support their assertion that the size of the disclaimer is
excessive here. In that case, we invalidated a San Francisco
ordinance requiring that certain printed beverage
advertisements include a health warning that occupied at
least 20% of the advertisement. Id. at 753–54. Plaintiffs
correctly point out that the size of the disclaimer here is, at
least for some ads, greater than 20%; and they correctly point
out that the First Amendment provides greater protection to
election-related speech than to commercial speech. United
States v. United Foods, Inc., 533 U.S. 405, 409–10 (2001).
But American Beverage differs from this case in two
critical ways. First, the governmental interest in informing
voters about the source of funding for election-related
communications is much stronger and more important than
the governmental interest in warning consumers about the
dangers of sugar-sweetened beverages. See, e.g.,
Brumsickle, 624 F.3d at 1005–06 (noting that, in the context
of political disclaimer laws, the “vital provision of
information repeatedly has been recognized as a sufficiently
28 NO ON E V. DAVID CHIU
important, if not compelling, governmental interest”); Yes
on Prop B, 440 F. Supp. 3d at 1057 (stating that “the political
context raises concerns not present in a commercial speech
case”).
Second, the constitutional problem in American
Beverage was that the City required a disclaimer that was
twice as large as necessary to accomplish the City’s stated
goals. 916 F.3d at 757. The challenged law mandated that,
no matter the size of the ad, the health warning had to occupy
at least 20% of the advertising space. Id. at 754. Here, by
contrast, no evidence suggests that a smaller or shorter
disclaimer would achieve the same effect as the required
disclaimers. Unlike in American Beverage, where the
ordinance mandated the entirety of the disclaimer’s content
and required that it occupy at least 20% of the ad, id. at 753–
54, here a disclaimer’s content and size vary, depending on
the number of secondary contributors and on the size of the
ad. Therefore, unlike in American Beverage, the size of the
disclaimer here is closely tailored to the governmental
interest of informing the public about the source of funding
and is not greater than necessary to accomplish that goal. As
the district court noted in the earlier litigation, the fact that
the content of a required disclaimer “is a major factor
contributing to its length suggests a smaller disclaimer
would not be equally effective.” Yes on Prop B, 440 F.
Supp. 3d at 1057.
In short, we are unpersuaded by Plaintiffs’ argument that
the size of the required disclaimers on the ads that they
wished to run presents an impermissible burden on their First
Amendment rights. With respect to the ads now exempt
under the amended statute, and in the circumstances in which
Defendants have agreed not to enforce the ordinance, San
Francisco’s ordinance does not burden Plaintiffs’ speech
NO ON E V. DAVID CHIU 29
such that “the intervention of a court of equity is essential in
order effectually to protect . . . rights against injuries
otherwise irremediable.” Weinberger v. Romero-Barcelo,
456 U.S. 305, 312 (1982) (citation and internal quotation
marks omitted).
The second burden identified by Plaintiffs—that the
secondary-contributor requirement violates their right to
freedom of association and drives away potential donors—
is likewise insufficient to outweigh the strength of the
governmental interests. “It is undoubtedly true that public
disclosure of contributions to candidates and political parties
will deter some individuals who might otherwise
contribute.” Buckley, 424 U.S. at 68. But to support an
exemption from a compelled disclosure requirement,
Plaintiffs must show more than a “modest burden.” Family
PAC, 685 F.3d at 808; see Ams. for Prosperity Found., 141
S. Ct. at 2388–89 (concluding that petitioners had shown a
“widespread burden on donors’ associational rights” where
there was evidence that petitioners and their supporters had
been subjected to “bomb threats, protests, stalking, and
physical violence,” and hundreds of organizations expressed
that they shared the petitioners’ concerns).
Plaintiffs provided only two declarations in support of
their contention that San Francisco’s ordinance burdens their
right to freedom of association. David asserts that
“[p]otential donors have expressed concern to me about the
secondary disclosure rules and are more reluctant to
contribute to committees where their donors need to be
disclosed.” Ed Lee Dems asserts that it would have to
withdraw its donations from the Committee and would have
its own fundraising challenges if donors thought that their
names might become public through the secondary-
contributor requirement.
30 NO ON E V. DAVID CHIU
The district court was within its discretion to conclude
that Plaintiffs failed to demonstrate that the secondary-
contributor requirement “actually and meaningfully deter[s]
contributors.” Family PAC, 685 F.3d at 807. Plaintiffs have
not provided evidence of any specific deterrence beyond
some donors’ alleged desire not to have their names listed in
an on-advertisement disclaimer. See Family PAC, 685 F.3d
at 806–08 (concluding that disclosure requirements
presented only a modest burden without a showing of a
significant risk of harassment or retaliation). That level of
hesitation on the part of donors is insufficient to establish
that the “deterrent effect feared by [Plaintiffs] is real and
pervasive.” Ams. for Prosperity Found., 141 S. Ct. at 2388.
Adopting Plaintiffs’ view that a modest burden on their
right to associate anonymously outweighs the informational
interest would “ignore[] the competing First Amendment
interests of individual citizens seeking to make informed
choices in the political marketplace.” McConnell, 540 U.S.
at 197 (quoting McConnell v. FEC, 251 F. Supp. 2d 176, 237
(D.D.C. 2003)), overruled in part on other grounds by
Citizens United, 558 U.S. at 365–66. The modest burden
imposed on the Plaintiffs is permissible when contrasted
with the alternative: “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.” Id. (internal quotation
marks omitted).
3. Narrow Tailoring
Under exacting scrutiny, “the challenged requirement
must be narrowly tailored to the interest it promotes.” Ams.
for Prosperity Found., 141 S. Ct. at 2384. But this standard
does not require “the least restrictive means of achieving that
NO ON E V. DAVID CHIU 31
end.” Id. Despite the close fit between San Francisco’s
ordinance and the government’s informational interest,
Plaintiffs present two different arguments as to why the
secondary-contributor requirement is insufficiently tailored.
Neither argument is persuasive.
First, Plaintiffs argue that the requirement fails narrow
tailoring because there are other available alternatives, such
as making the same information available in an online
database. That suggestion misunderstands the relevant
standard. The secondary-contributor requirement must have
a scope “in proportion to the interest served,” but it need not
represent the “single best disposition.” McCutcheon v. FEC,
572 U.S. 185, 218 (2014) (plurality opinion) (internal
quotation marks omitted). Case law and scholarly research
support the proposition that, because of its instant
accessibility, an on-advertisement disclaimer is a more
effective method of informing voters than a disclosure that
voters must seek out. See Gaspee Project, 13 F.4th at 91
(holding that an on-ad donor disclaimer is “not entirely
redundant to the donor information revealed by public
disclosures” because it “provides an instantaneous heuristic
by which to evaluate generic or uninformative speaker
names”), cert. denied, 142 S. Ct. 2647 (2022); Majors v.
Abell, 361 F.3d 349, 353 (7th Cir. 2004) (reasoning that
because fewer people are likely to see reports to government
agencies than notice in the ad itself, “reporting [is] a less
effective method of conveying information”); Michael
Kang, Campaign Disclosure in Direct Democracy, 97 Minn.
L. Rev. 1700, 1718 (2013) (“Research from psychology and
political science finds that people are skilled at crediting and
discrediting the truth of a communication when they have
knowledge about the source, but particularly when they have
knowledge about the source at the time of the
32 NO ON E V. DAVID CHIU
communication as opposed to subsequent acquisition.”).
Given the realities of voters’ decision-making processes
amidst a “cacophony” of electoral communications,
Getman, 328 F.3d at 1105–06, the district court was within
its discretion to conclude that the secondary-contributor
requirement has a scope in proportion to the City’s objective.
Plaintiffs’ second argument—that the requirement is not
limited to donations that are earmarked for electioneering—
does not change that conclusion. Plaintiffs cite two out-of-
circuit cases in which courts concluded that disclosure laws
were narrowly tailored, in part because the laws applied only
to donations that were earmarked for electioneering. See
Indep. Inst. v. Williams, 812 F.3d 787, 797 (10th Cir. 2016)
(upholding Colorado constitutional provision that only
required disclosure of donors who have specifically
earmarked their contributions for electioneering purposes);
Indep. Inst. v. FEC, 216 F. Supp. 3d 176, 190–92 (D.D.C.
2016) (three-judge panel holding that a large-donor
disclosure requirement limited to donors who contribute
$1,000 or more for the specific purpose of supporting the
advertisement is tailored to advance the government’s
interest in informing the electorate of the source of the
advertisement). 8 Those courts upheld laws that required
8
Plaintiffs also cite Van Hollen, Jr. v. FEC, 811 F.3d 486 (D.C. Cir.
2016), in which the D.C. Circuit considered a challenge to an FEC rule
requiring corporations and labor organizations to disclose only donations
“made for the purpose of furthering electioneering communications”
instead of all donations. 811 F.3d at 488 (citation and internal quotation
marks omitted). But because the court in Van Hollen did not consider
whether a campaign finance law violated the First Amendment, we do
not find its analysis to be persuasive. See id. at 495, 501 (holding that
the FEC’s rule is consistent with the text, history, and purposes of the
authorizing statute and is not an arbitrary and capricious exercise of the
FEC’s regulatory authority).
NO ON E V. DAVID CHIU 33
only disclosure of earmarked contributions. But neither
court suggested that, or had occasion to consider whether, a
law fails narrow tailoring unless it is limited to the disclosure
of earmarked contributions.
And even though San Francisco’s ordinance goes
beyond donations that are earmarked for electioneering, it
does not have an unconstrained reach. The challenged
ordinance requires an on-advertisement disclaimer listing
only the top donors to a committee that is, in turn, a top donor
to a primarily formed committee. S.F. Code § 1.161(a)(1).
Under California law, a primarily formed committee is
formed or exists primarily to support candidates or ballot
measures. Cal. Gov’t Code § 82047.5. By donating to a
primarily formed committee, a secondary committee
necessarily is making an affirmative choice to engage in
election-related activity.
If a secondary committee were to purchase and run an
advertisement opposing a ballot measure directly, its top
donors could be subject to California’s disclaimer
requirements, which Plaintiffs do not challenge. The
application of that law does not depend on whether the top
donors earmarked their contributions for electioneering, or
on whether they support the content of the advertisement.
The City’s ordinance does not violate narrow tailoring just
because the secondary committee funneled its donations
through a separate committee instead of running its own
advertisements.
Additionally, even if Plaintiffs’ challenge to the City’s
requirement were to succeed, the secondary donors still
would be subject to disclosure and publicly visible on
government websites. Plaintiffs do not challenge those
public disclosures of secondary donors, which occur whether
34 NO ON E V. DAVID CHIU
or not the donors earmarked their contributions. Assuming
that those disclosures are permissible, as Plaintiffs do by
failing to challenge their validity, we are not persuaded that
a law requiring those same donors to be named in an on-
advertisement disclaimer is insufficiently tailored.
Thus, we hold that the district court was within its
discretion to conclude that Plaintiffs did not establish a
likelihood of success on the merits.
C. Remaining Preliminary Injunction Factors
The district court concluded that none of the remaining
Winter factors weighed in favor of an injunction, in part
because Plaintiffs’ argument as to those factors largely relied
on their position that they had demonstrated a likelihood of
success on the merits. The same is true on appeal. We hold
that the district court did not abuse its discretion by reaching
that conclusion.
Without an injunction, Plaintiffs likely would be injured
by the loss of some First Amendment freedoms, Elrod v.
Burns, 427 U.S. 347, 373 (1976) (plurality opinion), but that
injury would be modest, Family PAC, 685 F.3d at 806.
Defendants, however, have established that there is a strong
public interest in providing voters with the information of
who supports ballot measures. Brumsickle, 624 F.3d at
1008. Thus, the public interest and the balance of hardships
weigh in favor of Defendants. See FTC v. Affordable
Media, LLC, 179 F.3d 1228, 1236 (9th Cir. 1999) (“Under
this Circuit’s precedents, ‘when a district court balances the
hardships of the public interest against a private interest, the
public interest should receive greater weight.’” (quoting
FTC v. World Wide Factors, Ltd., 882 F.2d 344, 347 (9th
Cir. 1989))).
NO ON E V. DAVID CHIU 35
AFFIRMED.
COLLINS, Circuit Judge, with whom CALLAHAN,
IKUTA, BENNETT, R. NELSON, LEE, BRESS,
BUMATAY, and VANDYKE, Circuit Judges, join,
dissenting from the denial of rehearing en banc:
I join Judge VanDyke’s dissent, which persuasively
explains why the panel’s erroneous decision “threatens vital
constitutional protections” and should have been reheard en
banc. See J. VanDyke Dissent at 72. But there is an
additional troubling aspect of the panel’s decision that alone
would have warranted rehearing en banc—namely, that it
explicitly allows San Francisco to commandeer political
advertising to an intrusive degree that greatly exceeds what
our settled caselaw would tolerate in the context of
commercial advertising. Although the remaining two judges
on the original panel have now issued an amended opinion
that tries to justify this upside-down view of the First
Amendment’s protections, the panel’s reasoning and result
remain indefensible.
I
As Judge VanDyke notes, San Francisco recently
amended the challenged ordinance to exempt many small or
short advertisements, thereby “addressing some of the most
egregious ways” in which the ordinance’s disclaimer
requirements intruded into the political speech of the
Plaintiffs. Id. at 52 n.6. The original panel decision correctly
36 NO ON E V. DAVID CHIU
summarized Plaintiffs’ earlier contentions on this score as
follows:
. . . Plaintiffs assert that the required
disclaimer displaces an excessive amount of
speech. According to David [the founder of
No on E], the spoken disclaimer would take
up 100% of a 15-second ad, 100% of a 30-
second ad, and 53-55% of a 60-second ad.
David averred that the written disclaimer on
video ads would take up between 35% and
51% of the screen for either 10 seconds of an
ad that is 30 seconds or longer, or the first 5
seconds of a shorter ad. Finally, David
declared that the required disclaimer would
take up 100% of a two-inch by four-inch ad,
70% of a five-inch by five-inch ad, 35% of a
five-inch by ten-inch ad, and 23% of the face
of an 8.5-inch by 11-inch mailer.
No on E, San Franciscans Opposing the Affordable Hous.
Prod. Act v. Chiu, 62 F.4th 529, 542 (9th Cir. 2023). The
recent amendment creates an exemption from the
requirement to disclose the top two major donors of
committee contributors in the case of either “a print
advertisement that is 25 square inches or smaller” or “an
audio or video advertisement that is 30 seconds or less.” See
S.F. CAMPAIGN & GOV’T CONDUCT CODE § 1.161(a)(1)(A)–
(B) (effective Aug. 27, 2023).
But that amendment does nothing to address Plaintiffs’
objections that (1) the written disclaimer would take up
“35% of a five-inch by ten-inch ad, and 23% of the face of
an 8.5-inch by 11-inch mailer”; (2) “the written disclaimer
NO ON E V. DAVID CHIU 37
on video ads would take up between 35% and 51% of the
screen” while displayed; and (3) the “spoken disclaimer
would take up . . . 53-55% of a 60-second ad.” No on E, 62
F.4th at 542. The panel’s treatment of those objections, both
in its original opinion and its amended opinion, raises
additional concerns that warranted rehearing en banc.
A
With respect to Plaintiffs’ first two objections
(concerning the amount of physical space occupied by the
disclaimers), the panel’s analysis—both in its original and
amended opinion—is clearly contrary to controlling
precedent.
1
The panel held in its original decision that the substantial
percentages of physical space taken up by the disclaimers
did not involve “an impermissible burden on speech.” No
on E, 62 F.4th at 542. The panel asserted that, in Citizens
United v. FEC, 558 U.S. 310 (2010), “the Supreme Court
upheld a law that required 40% of an advertisement to be
devoted to a disclaimer,” and the panel therefore concluded
that the percentages devoted to disclaimers here left
sufficient remaining space “to communicate the plaintiffs’
political message.” No on E, 62 F.4th at 542 (citing Citizens
United, 558 U.S. at 320, 366–68). In a footnote, the panel
attempted to distinguish our en banc decision in American
Beverage Association v. City & County of San Francisco,
916 F.3d 749 (9th Cir. 2019) (en banc), in which we held
that a San Francisco requirement that soda ads contain a
health disclaimer occupying 20% of the ad’s physical space
was “unduly burdensome.” Id. at 757. American Beverage
was “inapposite,” the panel claimed, because it was applying
the standards for compelled commercial speech set forth in
38 NO ON E V. DAVID CHIU
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626
(1985), and the “Zauderer test” involves “a separate inquiry
that requires the defendant to prove that compelled
commercial speech was neither unjustified nor unduly
burdensome.” No on E, 62 F.4th at 542 n.7. According to
the panel, “[t]hat test differs from exacting scrutiny review,
which applies to disclaimer and disclosure requirements in
the electoral context.” Id. That analysis, which the panel’s
amended opinion has now abandoned, was deeply flawed.
As an initial matter, the original panel decision was flatly
wrong in suggesting that Citizens United supports upholding
a disclaimer requirement that occupies 40% of the physical
space of a printed advertisement. The referenced portion of
Citizens United upheld a provision of federal law providing
that “televised electioneering communications funded by
anyone other than a candidate must include a disclaimer”
stating who “is responsible for the content of this
advertising” and that the “required statement must be made
in a ‘clearly spoken manner,’ and displayed on the screen in
a ‘clearly readable manner’ for at least four seconds.” 558
U.S. at 366 (emphasis added) (citations omitted). The
panel’s reference to a “40%” requirement was apparently
based on the fact that this four-second-minimum rule was
upheld as applied to the plaintiff’s 10-second ads in that
case. See id. at 320, 367. But the requirement to display a
concise disclaimer “on the screen in a ‘clearly readable
manner’ for at least four seconds” of the ads’ 10 seconds
does not equate to taking over 40% of the physical space of
a printed ad, which is a substantially greater intrusion on the
speaker’s message.
Even more egregiously, the original panel opinion
adopted a wholly implausible theory for distinguishing
American Beverage, which invalidated a 20% physical-
NO ON E V. DAVID CHIU 39
occupation requirement for health warnings in printed ads
for certain sugar-sweetened beverages. 916 F.3d at 757. It
is true, as the panel noted, that American Beverage involved
commercial speech and this case involves the “election
context,” which is “distinctive in many ways.” No on E, 62
F.4th at 542 n.7 (citation omitted). It is also true that
American Beverage was applying the “Zauderer test,” and
this case instead involves “exacting scrutiny review.” Id.
But these distinctions emphatically cut the other way.
Election-related speech is distinctive in the sense that it
receives a higher degree of constitutional protection than
commercial speech. See United States v. United Foods, Inc.,
533 U.S. 405, 409–10 (2001). And Zauderer scrutiny differs
from exacting scrutiny in the sense that it is a decidedly
lower standard—lower even than the already more lenient
standards applied to commercial speech generally. See, e.g.,
Milavetz, Gallup & Milavetz, P.A. v. United States, 559 U.S.
229, 249 (2010) (noting that the Zauderer test is even less
demanding than the normal standards applied to regulation
of commercial speech under Central Hudson Gas & Electric
Corporation v. Public Service Commission of New York, 447
U.S. 557 (1980)). By affording greater First Amendment
protection to soda ads than to core political speech, the
original panel decision thus got the First Amendment
analysis exactly backwards.
2
The two-judge quorum remaining from the original
panel has now issued an amended opinion that takes another
shot at trying to distinguish American Beverage and to
defend the head-snapping proposition that government may
commandeer a greater percentage of political ad space than
it may for commercial advertising. This effort again fails.
40 NO ON E V. DAVID CHIU
The amended opinion now concedes that the core
political speech at issue here is entitled to greater First
Amendment protection than the soda ads at issue in
American Beverage, where we invalidated, as unduly
burdensome, a disclaimer that took up 20% of an ad’s
physical space. See Amended Opin. at 27. In nonetheless
upholding a substantially more burdensome occupation of
35% or more of a political ad’s physical space, the panel
relies on two flawed points that only underscore the damage
being done to the First Amendment in this case.
First, the panel declares that, although political speech is
entitled to much greater First Amendment protection than
soda ads, the City’s corresponding interest in demanding
highly detailed in-the-ad disclosures of indirect funding
sources is so very much greater than the interest in disclosing
the health risks of sugared beverages that—voilà—it more
than swamps the greater protection afforded to political
speech. See Amended Opin. at 27–28. Second, the panel
asserts that the City is entitled to take as much space as it
needs to set forth the required disclosures, so that the very
verbosity of the mandated disclaimers necessarily requires
that they occupy a large amount of physical space in the
regulated political ad. See id. at 28. The panel’s amended
opinion thus combines (1) ipse dixit reflecting the panel’s
value judgments about the supposed weight of the asserted
government interests and the relative importance of the
different types of speech with (2) a whatever-it-takes
approach to burdening political speech. This analysis bears
little resemblance to the required “exacting scrutiny,” under
which “the strength of the governmental interest must reflect
the seriousness of the actual burden on First Amendment
rights.” Davis v. FEC, 554 U.S. 724, 744 (2008) (emphasis
added). Here, a consideration of those actual burdens
NO ON E V. DAVID CHIU 41
confirms that, as in American Beverage, the City’s desire to
commandeer more physical space in other people’s speech
must yield to the First Amendment.
In requiring the challenged additional disclosures, the
City’s ordinance piggybacks onto the disclosure
requirements set forth in Chapter 4 of California’s Political
Reform Act, California Government Code § 84100 et seq.
See S.F. CAMPAIGN & GOV’T CONDUCT CODE § 1.161(a).
For printed ads, those disclosure requirements specify that
the “disclosure area shall have a solid white background and
shall be in a printed or drawn box on the bottom of at least
one page that is set apart from any other printed matter.” See
CAL. GOV’T CODE § 84504.2(a)(1). Although the Political
Reform Act only requires the text of disclaimers to be in “10-
point” font, see id. § 84504.2(a)(2), the City’s ordinance
instead generally requires the use of “14-point, bold font,”
see S.F. CAMPAIGN & GOV’T CONDUCT CODE § 1.161(a)(3).
Given these baseline requirements, the blizzard of additional
words required by the City’s ordinance results in a
substantial takeover of the physical space of the regulated
political ads, as illustrated in the following example of a
supposedly “full-page” ad contained in the record below:
42 NO ON E V. DAVID CHIU
NO ON E V. DAVID CHIU 43
American Beverage properly recognized that, at some
point, the sheer size and intrusiveness of a disclaimer
requirement threaten to “drown out” the speaker’s message
and even to “effectively rule out the possibility of having an
advertisement in the first place.” 916 F.3d at 757
(simplified); see also National Inst. of Fam. & Life Advocs.
v. Becerra, 138 S. Ct. 2361, 2378 (2018) (NIFLA) (making
a similar observation in striking down required disclaimers
in the advertisements of certain unlicensed providers of
“pregnancy-related services”). As the above illustration
shows here, taking such a large percentage of the physical
space of an ad inevitably dilutes the speaker’s message in a
way that crowds out that message and impedes its
effectiveness. Viewed in light of “the seriousness of the
actual burden on First Amendment rights,” Davis, 554 U.S.
at 744, the panel’s take-as-much-as-you-need approach to
burdening political speech is flatly contrary to American
Beverage and NIFLA and is anathema to the First
Amendment.
The panel’s defense of the City’s physical-occupation
requirement for videos fares no better. For starters, the
panel’s amended opinion inexplicably ignores the
percentage of the physical space consumed by the required
visual video disclaimer and instead addresses only the
percentage of time in which that disclaimer must be
displayed. 1 Assuming that the panel is implicitly relying on
1
The omission is apparently an artifact of the panel’s effort to fix the
original opinion’s mistaken use of Citizens United’s discussion of
temporal percentage requirements to justify physical percentage
requirements. See supra at 38. But in un-crossing those wires, the
panel’s amended opinion now fails to directly address Plaintiffs’
objection that, when displayed, the visual video disclaimer occupies
between 35% and 51% of the physical space of the screen.
44 NO ON E V. DAVID CHIU
the same whatever-the-government-needs approach to a
disclaimer’s physical occupation of an ad, that reasoning is
equally defective in the video context. Once again, the
challenged ordinance’s disclaimer requirements piggyback
onto the requirements of the Political Reform Act. The
baseline established by that Act is that the required
disclaimers must “appear on a solid black background on the
entire bottom one-third of the television or video display
screen,” see CAL. GOV’T CODE § 84504.1(b)(1), but here the
City’s much lengthier disclosure requirements will often
require more than one-third of the screen. The resulting
intrusion into the physical space of the video ad is illustrated
by the following example in the record:
This commandeering of such a substantial portion of the
visual space of the ad raises concerns comparable to those
discussed earlier about crowding out the speaker’s message
and impeding effective communication. This sort of
significant intrusion into political speech greatly exceeds
NO ON E V. DAVID CHIU 45
what the Supreme Court upheld in Citizens United, in which
the challenged disclaimer had to be “displayed on the screen
in a ‘clearly readable manner’ for at least four seconds” and
consisted of (1) the statement that “_______ is responsible
for the content of this advertising”; (2) a statement that the
communication “is not authorized by any candidate or
candidate’s committee”; and (3) “the name and address (or
Web site address) of the person or group that funded the
advertisement.” 558 U.S. at 366 (quoting 2 U.S.C. § 441d
(2006)).
Under American Beverage and NIFLA, the challenged
ordinance’s commandeering of 23%, 35%, or even 51% of
the physical space of a political ad is unduly burdensome and
violates the First Amendment.
B
With respect to Plaintiffs’ third objection (concerning
the required spoken disclaimers), the panel has not even
attempted—either in its original opinion or its amended
opinion—to defend the constitutionality of having spoken
disclaimers take up more than half of a 60-second audio or
video ad. Indeed, the patent unconstitutionality of the
resulting burdens is underscored by the fact that this
commandeering of more than half of the speaking time in a
video ad is imposed on top of the already unduly burdensome
seizure of 35% to 51% of the ad’s visual space for as much
of a third of the ad’s running time. Rather than defend this
obviously unconstitutional restriction, the panel assumed
that such an application of the challenged ordinance would
raise serious constitutional issues, but it nonetheless upheld
the denial of a preliminary injunction on that score as
unnecessary. No on E, 62 F.4th at 542–43; see also
Amended Opin. at 25–26. It is unnecessary, the panel
46 NO ON E V. DAVID CHIU
concluded, because San Francisco has committed, on the
record, not to enforce the “spoken disclaimers on digital and
audio advertisements of 60 seconds or less.” No on E, 62
F.4th at 543; see also Amended Opin. at 26. This reasoning
is also clearly wrong.
In its recently enacted amendment, San Francisco has
specifically exempted only audio or video ads of “30 seconds
or less,” rather than 60 seconds or less. By conspicuously
adopting a lesser cut-off than the one it had committed to
follow in the district court and in this court, San Francisco
has called into question the reliability of the representations
on which the panel relied. San Francisco’s manifest effort
to hang on to a portion of an ordinance that it simultaneously
insists to us that it will never enforce is deeply troubling. We
should not tolerate this kind of coyness from government
litigants, especially when it comes to constitutional rights.
On this score, the panel was wrong to uncritically accept San
Francisco’s representations, which provide insufficient
grounds for declining to preliminarily enjoin enforcement of
this aspect of the ordinance against ads of 60 seconds or less.
II
The astonishing result of the panel’s erroneous decision
is that the jurisprudence of this circuit now affords more
robust constitutional protection to ads hawking sugary
beverages than to core political speech about ballot
initiatives. That defies both controlling precedent and
common sense. We should have reheard this case en banc,
and I respectfully dissent from our failure to do so.
NO ON E V. DAVID CHIU 47
VANDYKE, Circuit Judge, joined by CALLAHAN,
IKUTA, BENNETT, R. NELSON, COLLINS, LEE,
BRESS, and BUMATAY, Circuit Judges, dissenting from
the denial of rehearing en banc:
The panel in No on E v. Chiu upheld an election
disclosure regulation that burdens Plaintiffs’ First
Amendment speech and association rights, and that will
inevitably result in voter confusion. It did so on the ground
that the law advances the government’s interest in educating
the electorate. That ruling subverts the First Amendment
rights of many San Franciscans and encourages increasingly
onerous compelled disclosure laws that will similarly fail to
advance an important government interest. This is not the
exacting scrutiny the Supreme Court reminded our circuit to
undertake when it reversed us only two years ago. See Ams.
for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).
Proposition F, a recently adopted San Francisco election
regulation, burdens associational and speech rights in at least
two ways. 1 First, Proposition F burdens the associational
rights of political speakers and their contributors (and even
their contributors’ contributors) by requiring political
speakers to disclose on political advertisements the names of
both their own contributors and their contributors’
contributors. See Buckley v. Valeo, 424 U.S. 1, 64 (1976)
(per curiam). Second, Proposition F burdens political
speakers’ speech rights by requiring they change their
message to (ostensibly) advance the government’s
informational interests. See ACLU of Nev. v. Heller, 378
1
Proposition F is unrelated to the ballot measure that Plaintiff No on E
was formed to oppose.
48 NO ON E V. DAVID CHIU
F.3d 979, 988 (9th Cir. 2004); Riley v. Nat’l Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 797 (1988).
Election disclosure requirements that burden First
Amendment rights are evaluated under “exacting” scrutiny. 2
Ams. for Prosperity Found., 141 S. Ct. at 2383 (plurality
opinion); see Citizens United v. FEC, 558 U.S. 310, 366
(2010). Exacting scrutiny requires “a substantial relation
between the disclosure requirement and a sufficiently
important governmental interest.” Ams. for Prosperity
Found., 141 S. Ct. at 2383 (plurality opinion) (quoting Doe
v. Reed, 561 U.S. 186, 196 (2010)). A substantial relation
mandates that “the rule requiring disclosure” “further[s]” or
advances a sufficiently important government interest.
Acorn Invs., Inc. v. City of Seattle, 887 F.2d 219, 225–26
(9th Cir. 1989). And a “disclosure regime[]” must also “be
narrowly tailored to the government’s asserted interest.”
Ams. for Prosperity Found., 141 S. Ct. at 2383 (plurality
opinion).
The panel erroneously concluded that Proposition F
survives such scrutiny. To get there, it recited holdings
indicating that the government has an important interest in
informing voters about the source of funding for political
advertisements. See, e.g., Fam. PAC v. McKenna, 685 F.3d
800, 806 (9th Cir. 2012). The panel then leapt from those
holdings to conclude that “[i]t follows” that a law requiring
the on-ad disclosure of a political speaker’s contributors’
contributors is substantially related to that same government
2
The caselaw typically labels an entity’s on-ad identification of itself as
a “disclaimer” and an entity’s report to the state listing its top donors as
a “disclosure.” See, e.g., Citizens United v. FEC, 558 U.S. 310, 366–67
(2010). But because both are more intuitively understood as disclosures,
I will refer to the law here as requiring on-ad disclosures.
NO ON E V. DAVID CHIU 49
interest. This leap was unwarranted: by contributing to the
organization, contributors do not necessarily endorse other
entities that the organization may choose to fund. A man
may be known by the company he keeps, but not by the
company that his company keeps, particularly when his
company’s company isn’t also his company. Put differently,
a man may be known by the company that he opts to keep,
but he is not known by company once-removed with whom
he has not opted to associate or disassociate—indeed, who
he may not even know exists. Nor is the panel’s leap
precedented. Until this case, we have never blessed the
compelled disclosure of secondary contributors. Our court
should have taken the opportunity to correct en banc this
unjustified First Amendment intrusion. I respectfully
dissent.
I. BACKGROUND
A. Regulatory Background
California requires thorough disclosures from those
engaged in political action. Many of these regulations target
entities defined as “committees” under California law. 3
California requires such committees to file periodic reports,
disclosing many of their contributors. Cal. Gov’t Code
§ 84211. California also requires these committees to list
3
A committee is “any person or combination of persons who directly or
indirectly … [r]eceives contributions totaling two thousand dollars
($2,000) or more in a calendar year,” “[m]akes independent expenditures
totaling one thousand dollars ($1,000) or more in a calendar year,” or
“[m]akes contributions totaling ten thousand dollars ($10,000) or more
in a calendar year to or at the behest of candidates or committees.” Cal.
Gov’t Code § 82013.
50 NO ON E V. DAVID CHIU
their top contributors on their advertisements. 4
Id. §§ 84501(c), 84503. When a committee runs political
advertisements, it must include on the ad the identity of who
paid for the ad, i.e., the name of the committee, and list the
committee’s top three contributors of “fifty thousand
($50,000) or more.” Id. §§ 84501(c), 84502, 84503.
Perhaps thinking that it never hurts to have more of a
good thing—in this case, compelled disclosure—San
Francisco in 2019 adopted Proposition F. Proposition F
increased the disclosure “requirements for primarily formed
independent expenditure [and ballot measure] committees.”
S.F. Campaign & Governmental Conduct Code (“S.F.
Code”) § 1.161(a). Primarily formed committees are those
“formed or exist[ing] primarily to support or oppose … [a]
single candidate,” “[a] single measure,” “[a] group of
specific candidates being voted upon in the same city,
county, or multicounty election,” or “[t]wo or more
measures being voted upon in the same city, county,
multicounty, or state election.” Cal. Gov’t Code § 82047.5;
S.F. Code § 1.161(a). Proposition F requires primarily
formed committees to provide on-ad disclosures of their top
contributors of $5,000 or more (down from the $50,000
minimum established by state law). S.F. Code § 1.161(a).
Of particular importance here, Proposition F also requires
that the on-ad disclosure list, for those of the committee’s
top contributors that are themselves committees, the name
4
California law defines advertisements for purposes of the on-ad
disclosure requirement as those “general or public communication[s]
that [are] authorized and paid for by a committee for the purpose of
supporting or opposing a candidate or candidates for elective office or a
ballot measure or ballot measures.” Cal. Gov’t Code § 84501(a)(1).
NO ON E V. DAVID CHIU 51
and contribution amount of those contributors’ top two
contributors of $5,000 or more. Id. § 1.161(a)(1). 5
Proposition F and its implementing regulations govern
how committees must list these contributors on their ads.
That ordinance requires that each disclaimer required by
California law or Proposition F be followed, in the same
format as the disclaimer itself, by this phrase: “Financial
disclosures are available at sfethics.org.” Id. § 1.161(a)(2).
For print advertisements, Proposition F requires all the on-
ad disclosures be “printed in at least 14-point, bold font.” Id.
§ 1.161(a)(3). For audio and video advertisements,
Proposition F’s disclaimers must be “spoken at the
beginning of such advertisements,” but Proposition F does
not require they “disclose the dollar amounts of
contributions.” Id. § 1.161(a)(5). Implementing regulations
impose even more specific requirements, down to the
placement of em dashes and the number of spaces separating
items in certain parts of the disclosure. See S.F. Ethics
Comm’n Reg. (“S.F. Reg.”) § 1.161-3(a). To use Plaintiff
No on E as an example, its print on-ad disclosure would
appear as follows in the required 14-point bold font:
Ad paid for by San Franciscans Supporting Prop. B
2022. Ad Committee’s Top Funders:
1. Concerned Parents Supporting the Recall of Collins,
Lopez and Moliga ($5,000) – contributors include
Neighbors for a Better San Francisco Advocacy
Committee ($468,800), Arthur Rock ($350,000).
5
Partially adopting the parties’ convention, I refer to the committee
issuing an ad as the “political speaker,” the political speaker’s top
contributors as “primary contributors,” and the primary contributors’ top
contributors as “secondary contributors.”
52 NO ON E V. DAVID CHIU
2. BOMA SF Ballot Issues PAC ($5,000).
3. Edwin M. Lee Asian Pacific Democratic Club
sponsored by Neighbors for a Better San Francisco
Advocacy ($5,000) – contributors include Neighbors for
a Better San Francisco Advocacy Committee ($100,000),
David Chiu for Assembly 2022 ($10,600).
Financial disclosures are available at sfethics.org.
This requirement, facially onerous and visually
cumbersome, drowns the political speaker’s message in
disclosure. 6
B. This Litigation
Todd David, “long … active in San Francisco politics,”
formed San Franciscans Supporting Prop B (“SPB”). After
the June 2022 election where San Franciscans adopted
Proposition B, SPB changed its name twice in short
succession, ending with its current name, No on E. 7 SPB
6
After Plaintiffs in this case petitioned for rehearing en banc, San
Francisco amended the regulation to exempt certain small
advertisements, thus addressing some of the most egregious ways the
regulation infringed on First Amendment rights. S.F. Bd. of Supervisors,
Ordinance 186-23, File No. 221161 (July 28, 2023). San Francisco
essentially codified the commitment that Defendants had earlier made to
not enforce the regulation against certain smaller advertisements. I
would submit that Proposition F fails such scrutiny in circumstances
beyond just those exempted by the recent amendment.
7
See S.F. Ethics Comm’n, San Franciscans Supporting Prop B 2022,
FFPC 410, Filing ID 203483641 (Apr. 13, 2022),
https://public.netfile.com/Pub2/RequestPDF.aspx?id=203483641; S.F.
Ethics Comm’n, San Franciscans Supporting Prop B, FPPC 410
Amendment, Filing ID 204422769 (Aug. 12, 2022),
https://public.netfile.com/Pub2/RequestPDF.aspx?id=204422769; S.F.
NO ON E V. DAVID CHIU 53
received contributions from three entities, Concerned
Parents Supporting the Recall of Collins, Lopez, and Moliga;
BOMA SF Ballot Issues PAC; and Edwin M. Lee Asian
Pacific Democratic Club PAC (“Ed Lee Dems”). Each of
these entities gave SPB $5,000, triggering Proposition F’s
requirement that SPB disclose them on their advertisements.
Moreover, Ed Lee Dems and Concerned Parents are both
committees who have received more than $5,000 from
certain donors, triggering Proposition F’s requirement that
SPB disclose these secondary contributors. One of SPB’s
primary contributors, Ed Lee Dems, received funding from
Neighbors for a Better San Francisco Advocacy Committee
and David Chiu for Assembly 2022. One of SPB’s other
primary contributors, Concerned Parents, received funding
from Neighbors for a Better San Francisco Advocacy
Committee and Arthur Rock. These donors to Ed Lee Dems
and Concerned Parents have not contributed to SPB
monetarily or otherwise.
Proposition F inhibits SPB’s contributors from freely
associating with, and speaking through, SPB. Ed Lee Dems
has financially contributed to SPB and supports the passage
of Proposition B. But the treasurer for Ed Lee Dems
declared that if SPB were to issue ads triggering Proposition
F’s on-ad disclosure requirement, then Ed Lee Dems would
withdraw its support and request its money be returned.
Withdrawal would be necessary because Ed Lee Dems’s
“[d]onors contribute to Ed Lee Dems to support any of its
various goals and projects, and some donors do not support
Ethics Comm’n, No on E, San Franciscans Opposing the Affordable
Housing Production Act, FPPC 410 Amendment, Filing ID 204444625
(Aug. 16, 2022), https://public.netfile.com/Pub2/RequestPDF.aspx?id=
204444625.
54 NO ON E V. DAVID CHIU
all of its goals and projects.” Some of these donors “would
be upset to end up on disclaimers on issues that they have no
interest in, or even [have] contrary positions on,” such as
SPB. These donors “would withdraw their support if they
knew that Ed Lee Dems supported groups making
communications that triggered such on-communication
disclosure.”
As an example of the confusion and compelled
association Proposition F triggers, the treasurer for Ed Lee
Dems reported receiving more than $5,000 from “David
Chiu for Assembly 2022.” But Chiu’s 2022 candidacy for
the assembly seat ended and he is now the City Attorney.
Listing David Chiu for Assembly 2022 as a secondary
contributor to SPB “would mislead voters into believing that
the City Attorney is running for another office and
improperly taking positions on issues, damaging Mr. Chiu’s
reputation.”
Several Plaintiffs, consisting of Todd David, SPB, and
Ed Lee Dems, sued San Francisco’s City Attorney David
Chiu and several other San Francisco authorities seeking and
moving for injunctive relief from Proposition F and its
implementing regulations. The district court denied the
motion. Plaintiffs appealed, and the panel in this case
affirmed. The panel concluded that “Plaintiffs did not
establish a likelihood of success on the merits.”
Purporting to apply exacting scrutiny, the panel
determined that there was “a ‘substantial relation’ between
[Proposition F] and a ‘sufficiently important’ governmental
interest.” In assessing the government’s interest, the panel
recited several cases that establish that interest is “in
informing voters about who funds political advertisements.”
According to the panel, “[i]t follows” from that
NO ON E V. DAVID CHIU 55
informational interest that Proposition F “is substantially
related to that interest.” The panel reasoned that the
contributors to committees running election advertisements
might be committees themselves and ones with names that
might “obscure their actual donors.” The panel did not
explain how voters would distinguish between secondary
contributors that funnel money through primary
contributors, and thus can reasonably be inferred to support
the political speaker, and those with no relationship to the
political speaker.
The panel further concluded that the governmental
interest was sufficient given “the seriousness of the actual
burden on First Amendment rights.” At the end of its
purportedly “exacting” scrutiny, the panel concluded that
Proposition F was narrowly tailored to advance the
government’s interest. Plaintiffs petitioned for en banc
rehearing.
II. ANALYSIS
Despite the severe burdens on their First Amendment
rights that Proposition F caused and will continue to cause
Plaintiffs to suffer, the panel upheld the ordinance by
identifying a government interest that is not advanced—and
in fact is undercut—by the regulation. Our law requires
more before we uphold government intrusions on speech and
association rights. We should have corrected course.
A. Proposition F Seriously Burdens Plaintiffs’
Association and Speech Rights.
The First Amendment prohibits the government from
“abridging the freedom of speech … or the right of the
people peaceably to assemble.” U.S. Const. amend. I.
56 NO ON E V. DAVID CHIU
Proposition F burdens Plaintiffs’ rights to both free
association and free speech.
i. Proposition F Burdens Plaintiffs’ Association
Rights.
Defendants argued to the panel that Proposition F
imposes no burden on association rights. Although the panel
did not conclude that Proposition F imposes no burden on
association rights, it did conclude that the burden was light
in comparison to “the strength of the governmental
interests.” Before proceeding to exacting scrutiny, it is thus
worth reviewing the severity of Proposition F’s intrusion on
association rights.
Proposition F burdens Plaintiffs’ right of association in a
peculiarly egregious fashion. The law exceeds California’s
requirement that political speakers disclose their top
contributors on ads—a requirement that already seriously
encroaches on the First Amendment’s association
guarantees. See NAACP v. Alabama ex rel. Patterson, 357
U.S. 449, 462 (1958); Ams. for Prosperity Found., 141 S. Ct.
at 2382. San Francisco’s law instead compels unwanted
associations by requiring political speakers to give the
appearance of affiliation with secondary contributors,
despite the lack of any affirmative act giving rise to such an
association. And to be clear, as both a matter of logic and
the law, forcing the appearance of association is a form of
forcible association. Cf. Boy Scouts of Am. v. Dale, 530 U.S.
640, 648 (2000) (explaining how forced affiliation can
infringe the right of association).
Compelled disclosure of anonymous associations and
compelled formation of association are both uncomfortable
reminders of the ugly history of majoritarian groups forcing
the disclosure of culturally unpopular minority associations.
NO ON E V. DAVID CHIU 57
See Latta v. Otter, 771 F.3d 456, 474 (9th Cir. 2014) (“[A]
primary purpose of the Constitution is to protect minorities
from oppression by majorities.”); John D. Inazu, The
Unsettling “Well-Settled” Law of Freedom of Association,
43 Conn. L. Rev. 149, 198 (2010) (noting the First
Amendment right of assembly’s history of “shielding
dissident groups from a state-enforced majoritarianism
throughout our nation’s history”). As James Madison noted,
“[i]f a majority be united by a common interest, the rights of
the minority will be insecure.” The Federalist No. 51, at 270
(George W. Carey & James McClellan eds., Liberty Fund
2001).
The clash of majoritarian power with private and
unpopular associations found its paradigmatic display in
NAACP v. Alabama ex rel. Patterson, where the Supreme
Court upheld the NAACP’s right to not disclose its
membership rolls to the state of Alabama. 357 U.S. at 449.
The need to protect vulnerable members of an unpopular
association was nowhere more apparent than protecting
members of the NAACP in the American South during the
Civil Rights Era. The “identity of [NAACP’s] rank-and-file
members” in Alabama exposed the members to serious risk
of reprisal for their membership, “adversely [affecting] the
ability of [NAACP] and its members to pursue their
collective effort[s].” Id. at 462–63. In NAACP, the Court
upheld the NAACP’s right to protect its members from
identification with a culturally unpopular organization. See
id. But the same right to anonymously associate also
protects organizations from reprisal based on the
membership of, or contributions from, culturally unpopular
people and other organizations. Just as the NAACP
members were at risk for reprisal in 1950s Alabama, so a
candidate or ballot measure with unpopular supporters (or in
58 NO ON E V. DAVID CHIU
this case, supporters of supporters) can be at risk of reprisal
when those supporters are forcibly disclosed. Likewise, an
unpopular speaker who is forced to disclose the supporters
of its supporters also puts those secondary supporters at a
risk of reprisal, even though they may have no relationship
(and may desire no relationship) with the speaker.
As is helpfully illustrated by the NAACP case, the mere
fact that a compelled disclosure law is facially neutral
doesn’t prevent it from having an acute disparate impact on
culturally unpopular groups. Cf. Int’l Bhd. of Teamsters v.
United States, 431 U.S. 324, 335 n.15 (1977) (explaining
disparate impact occurs when “practices that are facially
neutral in their treatment of different groups … in fact fall
more harshly on one group than another”). Forcibly
disclosing members of organizations advocating for
segregation in 1950s Alabama would not have harmed those
organizations in the same way as disclosing members of the
NAACP would have. See Ams. for Prosperity Found., 141
S. Ct. at 2388 (noting that “some donors might not mind—
or might even prefer—the disclosure of their identities to the
State”). When only a minority of the community supports
an institution—such as the NAACP in Alabama of the
1950s—the public disclosure of a person’s support for that
institution may often invite reprisal. See NAACP, 357 U.S.
at 462. In contrast, organizations and contributors that are
culturally popular at a given time often do not risk similar
harm by the surrounding community knowing of the
association. The harms of compelled disclosure inevitably
fall unevenly on the unpopular—that is, precisely those
groups most in need of First Amendment protection.
But San Francisco’s ordinance does not merely require
disclosure of anonymous association, as is the case for
California’s on-ad disclosure law—it forces the formation of
NO ON E V. DAVID CHIU 59
associations. We have no logical reason to think that either
a political speaker in accepting a contribution from a primary
contributor, or a secondary contributor in contributing to that
primary contributor, necessarily have any desire to associate
with one another. The friends of your friend may want
nothing to do with you—and vice versa. Nonetheless, when
it is time for a political speaker to create its advertisements,
Proposition F requires the speaker to prominently display the
secondary contributor’s name. See S.F. Code § 1.161(a).
In compelling these on-ad disclosures, Proposition F will
cause the public to naturally infer second-degree
associations between political speakers and secondary
contributors, notwithstanding the absence of any logical
basis to infer such an association actually exists.
Advertisements containing the name of a political speaker
(and the speaker’s message) as well as the names of
secondary contributors will lead many to infer an association
between the speaker and the secondary contributor. Such
advertisements will often take the form of a radio ad that a
citizen casually hears while driving to work or a poster
someone sees from a distance while waiting in line to order
his morning coffee, or any number of other ads delivered or
consumed in a similarly fleeting manner. 8 These citizens,
who cannot rewind a radio ad or who must step forward in
line and order coffee, will rarely enjoy sufficient time or
8
Even the most non-fleeting of advertisements poses this same risk
because of how advertisements are commonly treated by the deluged
citizenry. How often do people glance only for a moment at a detailed
pamphlet they receive in the mail before throwing it in the garbage?
Such a fleeting perusal of an otherwise thorough advertisement prompts
quick inferences citizens would not make when situated to carefully
consider the existence (or lack thereof) of a connection between political
speakers and secondary contributors.
60 NO ON E V. DAVID CHIU
motivation to discern whether the secondary contributor
actually endorses the political speaker. They will just
remember the association (true or not) created by the
mandatory disclosure. Indeed, that is precisely the result that
Proposition F intends—otherwise, why compel such
disclosure?
Of course, if an ordinary citizen fully understood that the
sole connection between a political speaker and a secondary
contributor is that the secondary contributor gave money to
an organization (the primary contributor) that then
independently chose to give money to the political speaker,
that ordinary citizen would not rationally infer any necessary
association between the political speaker and the secondary
contributor. People do not ordinarily assume an association
necessarily exists between, say, a non-profit who receives
money from a synagogue and that synagogue’s top
contributors. 9 Proposition F thus causes the busy public to
infer an association that people ordinarily would not infer if
they had time or reason to fully understand the tenuous
connection between political speakers and secondary
contributors.
9
A “committee” need not be exclusively political under California law
and can be a multipurpose organization. See Cal. Gov’t Code
§§ 82013(a) (defining a committee as a “combination of persons” that
receives at least $2,000 a year in contributions), 82015(a)–(b) (defining
a contribution as payment without consideration that is unambiguously
for a “political purpose[]” even if given to a “multipurpose
organization”), 84222(a) (defining a multipurpose organization as, inter
alia, “a civic organization[ or] a religious organization”). So a
synagogue that solicits and receives at least $2,000 in donations that are
for the synagogue to engage in a political function would be classified
under California law as a committee, and those synagogue members who
have given would be classified as contributors.
NO ON E V. DAVID CHIU 61
It is difficult to “think of [a] heavier burden on …
associational freedom” than “forced association.” Cal.
Democratic Party v. Jones, 530 U.S. 567, 581–82 (2000)
(holding unlawful a law “forc[ing] petitioners to” open “their
candidate-selection process … to persons wholly
unaffiliated with the party”). After all, “the freedom to
associate for the common advancement of political beliefs
necessarily presupposes the freedom” of an organization to
identify its members “and to limit the association to those
people only.” Democratic Party of U.S. v. Wisconsin ex rel.
La Follette, 450 U.S. 107, 122 (1981) (cleaned up; emphasis
added); see Janus v. Am. Fed’n of State, Cnty., & Mun.
Emps., Council 31, 138 S. Ct. 2448, 2463 (2018) (“The right
to eschew association for expressive purposes is likewise
protected [under the First Amendment].”).
That harm is starkly visible in this litigation. Plaintiff
committee No on E—earlier known as SPB—received
funding from Ed Lee Dems, which received funding from
David Chiu for Assembly 2022. Listing David Chiu for
Assembly 2022 as a donor on No on E’s ads forces the
appearance of association between Chiu, the current City
Attorney for San Francisco defending this lawsuit, and No
on E. The forced association created by listing Chiu on the
ad is particularly problematic because the City Attorney is
prohibited from taking positions on ballot measures.
Despite their attempts to argue otherwise, Defendants
confirmed in their briefing that the appearance of secondary
contributors on these ads will, in fact, create a perception of
association. First, Defendants devoted six sentences in their
briefing to explaining that City Attorney David Chiu cannot
and has not supported any ballot measures, even though his
organization, David Chiu for Assembly 2022, is a secondary
contributor to SPB, a committee supporting ballot measure
62 NO ON E V. DAVID CHIU
Proposition B. Defendants, in other words, strived with
these sentences to disassociate David Chiu from SPB. But
while those six sentences may clarify confusion in the
courtroom, those same sentences will not be available to
most secondary contributors objecting to their forced
association with a political advertisement or its speaker.
Defendants confirmed again that Proposition F forcibly
associates presumptive strangers, arguing that an on-ad
disclosure is critical to effecting San Francisco’s goal
because voters do not have the time to research the funding
of political speakers. Voters are indeed busy. As a result,
many will infer an association between the political speaker
and secondary contributors merely from the appearance of
the secondary contributor’s name on a political
advertisement. The ignorance of voters that Defendants
relied upon to justify Proposition F’s required disclosures
undercuts any argument that such voters will not be misled
when they glimpse a bunch of names in apparent association
with each other.
In upholding Proposition F, the panel made two
additional points that should not be understood to indicate
that Proposition F causes anything short of a severe intrusion
upon associational rights.10 First, the panel noted that “[b]y
donating to a primarily formed committee, a secondary
committee necessarily is making an affirmative choice to
engage in election-related activity.” True enough. But the
problem is not that secondary contributors are being forcibly
drawn into electoral politics—the problem is that secondary
contributors are being forcibly associated with entities with
10
The panel raised these arguments in its analysis of narrow tailoring.
Because Proposition F fails on the first element of exacting scrutiny and
I therefore need not address narrow tailoring, I address them here.
NO ON E V. DAVID CHIU 63
whom they never sought to associate. One should not be
subjected to undesired and illogical forced associations
merely because he voluntarily entered the political arena.
Second, the panel noted that “even if Plaintiffs’
challenge” was successful, “secondary donors still would be
subject to disclosure and publicly visible on government
websites.” But this fact is irrelevant for purposes of
assessing the burden on Plaintiffs’ associational rights. The
disclosure of such second-order connections through official
records, which are usually investigated by those prepared to
carefully consider whether an association necessarily exists,
will not risk the false inferences generated by on-ad
disclosures. 11
ii. Proposition F Burdens Plaintiffs’ Right to Speak.
In addition to its burden on Plaintiffs’ associational
rights, Proposition F burdens Plaintiffs’ speech rights.
11
The reason that Proposition F causes a materially different risk of
reprisal from the status quo disclosures—i.e., those in the official
records—should be clear enough when we consider who ordinarily
investigates the official records and why: a journalist learning about a
political speaker or funder, for the purpose of highlighting what that
journalist believes to be an unflattering association. But journalists
meticulously poring over official records are better equipped to draw
reasonable inferences from the data than a citizen bombarded by
advertisements during election season. And the standard practice of a
journalist engaging in such work is to solicit comments from parties the
journalist investigates. That request gives the discussed party the chance
to disclaim an endorsement of the political speaker or the speaker’s
message (or, if the discussed party is a secondary contributor, to disclaim
any association with the speaker at all). Political speakers and secondary
contributors suffer a far different and smaller intrusion into their
associational rights from investigations into public records than the
intrusion suffered by those parties from Proposition F’s forced on-ad
disclosures.
64 NO ON E V. DAVID CHIU
Indeed, it directly targets one of the fundamental reasons for
the First Amendment: protecting political speech. See
Meyer v. Grant, 486 U.S. 414, 425 (1988) (recognizing that
“the importance of First Amendment protections is ‘at its
zenith’” when a law regulates political speech); Ariz.
Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867
(9th Cir. 2016).
Plaintiffs obviously engage in political speech when
issuing advertisements to promote a candidate or a political
issue. See Mills v. Alabama, 384 U.S. 214, 218 (1966).
Proposition F requires that they modify their speech by
adding a list of (potentially nine) names and the amount that
each of those persons or entities contributed. For print ads,
these names must be in 14-point bold font, notwithstanding
how much the sheer volume of the disclosure may dilute or
distract from the speaker’s desired message, and even if the
message itself is as short as “Vote for Pedro” or “Save
Ferris.” S.F. Code § 1.161(a)(3). These disclosures
“necessarily alter[] the content of the [advertisement],”
burdening Plaintiffs’ rights to free speech. Riley, 487 U.S.
at 795; see Citizens United, 558 U.S. at 366 (subjecting
“[d]isclaimer and disclosure requirements” to exacting
scrutiny because they “may burden the ability to speak”).
Proposition F thus burdens Plaintiffs’ association and speech
rights.
B. Proposition F Fails Exacting Scrutiny Because
It Lacks a Substantial Relation to an Important
Government Interest.
Proposition F places onerous burdens on Plaintiffs’ First
Amendment rights, which demands the law withstand
exacting scrutiny. The panel concluded Proposition F
satisfies such scrutiny, reasoning that the law has a
NO ON E V. DAVID CHIU 65
substantial relation to the government’s asserted “interest in
informing voters about who funds political advertisements.”
That conclusion glosses over the distinction between
primary and secondary contributors. San Francisco does not
have a sufficiently important interest in requiring disclosure
of secondary contributors—which in any event will likely
only confuse many voters about who supports political ads.
i. San Francisco Has a Circumscribed and Limited
Interest in Informing Voters About Political
Speakers.
No one denies that the government has an interest in
informing voters about who is funding political ads. But the
precise contours of that interest are important—“[t]he simple
interest in providing voters with additional relevant
information does not justify a state requirement that a writer
make statements or disclosures she would otherwise omit.”
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 348
(1995). The government’s informational interest that can
justify burdens on First Amendment rights is the disclosure
of information that helps voters understand who is speaking
in a political advertisement.
“We have repeatedly recognized an important (and even
compelling) informational interest in requiring ballot
measure committees to disclose information about
contributions.” Fam. PAC, 685 F.3d at 806. The Supreme
Court has said such disclosure “allows voters to place each
candidate in the political spectrum more precisely than is
often possible solely on the basis of party labels and
campaign speeches.” Buckley, 424 U.S. at 67. “An appeal
to cast one’s vote a particular way might prove persuasive
when made or financed by one source, but the same
argument might fall on deaf ears when made or financed by
66 NO ON E V. DAVID CHIU
another.” Hum. Life of Wash. Inc. v. Brumsickle, 624 F.3d
990, 1008 (9th Cir. 2010). Our law does not assume that an
organization and its financiers are precisely aligned on every
issue, nor does it assume that disclosure serves the purpose
of telling the world of such a precise alignment. But the
premise on which the government’s informational interest
sits is that learning a political advertiser’s financiers can
serve as a reasonable proxy for informing the voter of where
the speaker falls on the political spectrum. Or as I
emphasized above, channeling the Greek moralist: “A man
is known by the company he keeps.” Aesop, Aesop’s Fables
109 (R. Worthington, trans., Duke Classics 1884).
ii. Proposition F Does Not Advance a Sufficiently
Important Government Interest.
But man is not known by the company of the company
he keeps. Proposition F does not advance any governmental
information interest that our court has previously
recognized. That is because a voter cannot reasonably infer
any relevant information about a political speaker or an
advertisement by knowing the speaker’s secondary
contributors. Cf. Van Hollen, Jr. v. FEC, 811 F.3d 486, 491,
497 (D.C. Cir. 2016) (recognizing that disclosing the names
of donors who do not designate their contributions for
“electioneering communications” would “convey some
misinformation to the public about who supported the
advertisements”). Secondary contributors may contribute to
the primary contributor for a variety of reasons unrelated to
the primary contributor’s support for a political speaker.
That is not merely a theoretical proposition; it is exactly what
Plaintiff Ed Lee Dems’s treasurer declared regarding Ed Lee
Dems’s contributors. And the government’s interest in
providing information about political speakers is not an
interest in communicating everything about a political
NO ON E V. DAVID CHIU 67
speaker. See McIntyre, 514 U.S. at 348. Under the panel’s
logic, the government could require the disclosure of as
many donation connections as it takes to show a given
political speaker’s degrees of separation from Kevin Bacon.
Is that information about the political speaker? Sure. Is it
relevant in any way to an arguable governmental interest?
We should all hope not.
But worse than simply compelling the disclosure of
information that furthers no sufficiently important
governmental interest, Proposition F will actually encourage
voters to draw inaccurate conclusions. When voters view
these ads with their on-ad secondary contributor disclosures,
one of two things will happen. Either the busy voter will be
confused and believe that a secondary contributor—who has
taken no action to support the advertisement or its speaker—
endorses the speaker and the advertisement, or the voter will
recognize that no relationship between the two can be
inferred. The first, as explained earlier, is more likely to
occur and not only fails to advance the government’s interest
in informing voters, it undermines that interest by
misinforming the voter. And in the rare instances where
voters properly draw no inference about a relationship
between the speaker and secondary contributors, no
governmental interest is furthered. Either way, Proposition
F does not further any sufficiently important government
interest.
The panel concluded that compelling the disclosure of
secondary contributors advances the government’s
informational interests, but the three reasons it provided do
not hold up. First, the panel reasoned that Proposition F
advances the government’s interests because primary donors
“are often committees in their own right” and may use
“creative but misleading names.” This reasoning perhaps
68 NO ON E V. DAVID CHIU
explains why San Francisco adopted the ordinance, but it
does not show that Proposition F advances San Francisco’s
informational interest. The interest might be advanced if
voters could know, when they see a secondary contributor’s
name, whether that secondary contributor intentionally
supported the political speaker and is only a secondary
contributor because it is trying to hide the source of funding.
But Proposition F’s requirements will never provide such
information through on-ad disclosures. Moreover, if it is
true that many donors want to hide their identities, it stands
to reason that most sophisticated election financiers will
simply funnel their money through an additional opaquely
named committee to avoid identification. 12
Second, the panel concluded that we cannot infer that
voters will be confused into believing secondary
contributors endorse the speaker or message unless Plaintiffs
advance affirmative proof of such confusion. But our court
does not require empirical proof before it can reach a logical
conclusion. See Merrifield v. Lockyer, 547 F.3d 978, 989
(9th Cir. 2008) (noting that, under rational basis review,
“[t]he State is not compelled to verify logical assumptions
with statistical evidence” (quotation omitted)). Common
sense dictates that when election season brings on a deluge
of political advertisements, voters will reflexively conclude
a connection exists between an ad and the names that appear
on it. Indeed, that perception of a connection is the whole
12
Under California’s disclosure laws—but seemingly not Proposition
F’s on-ad disclosure regime—a donor who earmarks donations and
funnels the donation through multiple entities will still be disclosed as
funding the political speaker. See Cal. Gov’t Code § 85704; see also id.
§ 84501(c)(3). Of course, if that law did apply to Proposition F, then
Proposition F advances no informational interest because the “true”
contributor will already be disclosed.
NO ON E V. DAVID CHIU 69
purpose behind Proposition F’s mandated disclosure of
secondary contributors. To pretend otherwise is to hide our
judicial heads in the sand.
The Supreme Court’s opinion in Washington State
Grange v. Washington State Republican Party, which
rejected a challenge on association grounds to Washington’s
ballot designating candidates with their “party preference,”
is not to the contrary. 552 U.S. 442, 444 (2008). The Court
in that case emphasized that the voting system had not yet
“been implemented” and so the Court lacked “ballots
indicating how party preference will be displayed. It stands
to reason that whether voters will be confused by the party-
preference designations will depend in significant part on the
form of the ballot.” Id. at 455. Although the Court would
not speculate whether the form of a possible ballot could
confuse voters, this case calls for no such speculation. Here,
we have the evidence that was missing in Washington State
Grange: namely, the precise format and content of the on-ad
disclosures required by Proposition F.
Moreover, as discussed above, when voters are not
confused or misled, then Proposition F still does not advance
the government’s interest, because in that instance
Proposition F effectively does nothing. For those voters who
are not confused, they will know that the identity of a
secondary contributor merely allows them a chance to guess
at whether the secondary contributor is (or isn’t) supportive
of the ad. Encouraging voter speculation, which is the most
that San Francisco can hope Proposition F accomplishes
without misleading voters, does not advance any
government interest. See Acorn Invs., Inc., 887 F.2d at 226.
Third, the panel insisted that there must be a substantial
relation here because “adopting Plaintiffs’ position could
70 NO ON E V. DAVID CHIU
call into question the logic underlying decisions that uphold
disclosure and disclaimer requirements as applied to primary
donors.” This reasoning highlights that the panel failed to
recognize the fundamental distinction between a primary
contributor and a secondary contributor. As discussed
above, the two are different not as a mere matter of degree,
but in kind. We know a primary contributor supports the
political speaker; we don’t know whether the secondary
contributor does. Indeed, we don’t know whether the
secondary contributor even knows the political speaker, or
vice versa. Recognizing that Proposition F doesn’t advance
the government’s informational interest is not at odds with
our cases holding that the government’s interest is advanced
by disclosing primary contributors.
In sum, Plaintiffs suffered and will suffer severe burdens
on their association and speech rights. The panel justified
such burdens by pointing to a governmental interest that is
not advanced by the burdensome law. The panel’s scrutiny
was “exacting” in name only.
C. The Panel’s Rationale Encourages
Governments to Impose Even More Invasive
On-Ad Disclosures.
The panel erroneously held that San Francisco may
require primary committees to provide, when acting as
political speakers, on-ad disclosure of their top contributors’
top contributors. Its error, however, is not limited to
depriving political committees and their contributors of their
First Amendment rights of association and speech. The
panel’s reasoning sets no logical limit to how many layers of
disclosures are necessary to find the true or original source
of a political ad’s funding.
NO ON E V. DAVID CHIU 71
Proposition F arbitrarily assumes that voters will be
meaningfully informed if they know the identities of a
political speaker’s contributors’ contributors. The
government’s supposedly animating concern is that political
donors will hide behind clever committee names to hide the
source of money if only disclosure of primary contributors
is required. But the obvious workaround for Proposition F
is to simply provide clever committee names for the
secondary contributors too. So disclosing secondary
contributors will not actually solve the problem—at least not
for long. So what’s next? Disclosure of tertiary (and
quaternary, quinary, senary) contributors? Why not
contributors even further removed from the political
speaker? The problem with the panel’s reasoning is that it
will presumably permit, under the guise of “exacting
scrutiny,” any number of layers between a contributor and a
political speaker, no matter how disconnected. Under the
panel’s logic, the on-ad disclosure of the contributors’
contributors’ contributors (and so on) will be substantially
related (enough) to the government’s informational interest.
For the same reasons that the on-ad disclosure of
secondary contributors here is different in kind from a
primary contributor, it is best to cut off the errant logic at its
source. The reason a government cannot justify an interest
in the compelled disclosure of five layers of contributors
(that is, the disclosure of a political speaker’s contributors’
contributors’ contributors’ contributors’ contributors) is
precisely the same reason Proposition F fails any sort of
heightened scrutiny: because a secondary contributor
logically does not endorse a political speaker or the
speaker’s message by funding a primary contributor.
That the panel’s rationale would permit such
increasingly onerous disclosures should have given our court
72 NO ON E V. DAVID CHIU
pause. The panel decision in this case may only immediately
curtail the First Amendment rights of San Franciscans, but
its reasoning threatens vital constitutional protections for
citizens in the entire Ninth Circuit. We should have granted
rehearing en banc.