There’s been much talk recently about a San Francisco ordinance that might regulate campaign-related speech by bloggers (see this InstaPundit post for some pointers). The proposed text of the March 30 version, the version that I think is the latest draft, is here. I’ve held off on blogging about this because I wanted to figure out just what the ordinance means, and it’s been surprisingly hard. I think I have enough to express at least a tentative opinion, though, so here it is.
(1) The ordinance would require that every “electioneering communication” include a statement that says “paid for by” followed by the name of the person who paid for the communication. If the statement is in “printed” as opposed to “spoken” form, it must be in at least a 14-point type; presumably Web sites would be treated as “printed” material.
This means that on our blog we’d have to say that the communication is paid for by whoever funds our blog (right now, since hosting fees are paid for by the law.com people, presumably that’s what we’d have to say). On an anonymous blog that’s funded by the blogger, the blogger-owner would have to reveal his identity. And imagine what would happen if other jurisdictions followed San Francisco’s lead, but required different forms of disclosure. (It’s true that for many posts the marginal cost is zero or near zero, but I think that under any sensible accounting system, one would have to say that if the blog costs money to host, someone is paying for the communications on the blog.)
(2) “Electioneering communication” is defined as “any communication,” including an “internet . . . communication” that “refers to a clearly identified candidate for City elective office or a City elective officer who is the subject of a recall” and “is distributed within 90 days prior to [the election]” “to 500 or more individuals who are registered to vote or eligible to register to vote in the election.” So far, this suggests that blog posts which are likely to have been seen by more than 500 eligible voters in San Francisco are covered, though how one would prove such a thing?
(3) However, “The term ‘electioneering communication’ shall not include . . . communications that constitute expenditures or independent expenditures under this Chapter.” What does that mean? Well, unfortunately, the relevant Chapter doesn’t define “independent expenditure,” but California Government Code sec. 82031 — presumably the best source of such a definition — does:
“Independent expenditure” means an expenditure made by any person in connection with a communication which expressly advocates the election or defeat of a clearly identified candidate or the qualification, passage or defeat of a clearly identified measure, or taken as a whole and in context, unambiguously urges a particular result in an election but which is not made to or at the behest of the affected candidate or committee.
(It’s possible that the “or taken as a whole and in context” portion is unconstitutional, given a recent appellate decision, but let’s set that side for now.)
If one follows this definition, then if your post advocates a candidate’s election or defeat, you need not disclose the funding source, but if it mentions a candidate without expressly or by unambiguous implication urging his election or defeat, then you must have a disclosure statement. That sounds to be contrary to the proposal’s likely purpose, but that’s what the text seems to call for: The disclosure requirement applies to mentions of a candidate’s name, but not to express or unambiguously implied advocacy (since the latter is the exempted “independent expenditure”). (Note that the definition of “expenditure” in the California Government Code — essentially “a payment,” with no further qualifiers — is so broad as to be unhelpful in interpreting the proposed new ordinance.)
(4) But wait, there’s still more! “The term ‘Electioneering Communication’ [also] shall not include . . . news stories, commentaries or editorials ditributed through any newspaper, radio station, television station, or other recognized news medium unless such news medium is owned or controlled by any political party, politically committee or candidate.” So if blogs are a “recognized news medium,” then they’re categorically exempted.
But “recognized” by whom? What makes a medium “recognized”? What even makes it a “news medium”? Is The New Republic — neither a newspaper nor an organ primarily focused strictly on news (its strength is analysis) — a “recognized news medium”? How about Slate.com? The newsy Drudge Report? The somewhat less newsy Instapundit? The less newsy Volokh Conspiracy?
In fact, the 1976 Supreme Court case Hynes v. Mayor of Oradell struck down as unconstitutionally vague an ordinance that also relied on an undefined concept of “recognition.” The ordinance regulated soliciting for a “recognized charitable cause,” and the Court correctly pointed out that people couldn’t tell what made a cause “recognized”; the same applies here, I think.
(5) It does seem that the ordinance’s reporting requirements — which are considerably more burdensome than the disclosure requirements — probably won’t be triggered by most blogs, since they apply only to people who spend at least $1000 in a year on “electioneering communications” related to San Francisco elections. But the disclosure requirements, which do indeed pose a nontrivial burden (see item 1), apply even if you don’t spend $1000 on the blog.
So the bottom line is that I can’t tell what the ordinance as currently drafted really means. Now some of the features I describe may well be unintentional, and perhaps they’ll be clarified in future versions of the ordinance. But the version that I have seems to pose a serious risk of imposing nontrivial regulations on bloggers who mention San Francisco candidates before an election — and, I think, violates the First Amendment on vagueness grounds.
UPDATE: Chris Nolan says the Board of Supervisors is planning to substitute a revised version that is supposedly better than the original version. (If anyone has a pointer to it, please e-mail me.) But the way it’s better, in theory, is that blogs are exempted as instances of a “recognized news medium”:
“Blogs are to be exempt,” said Supervisor Sophie Maxwell, specifically citing the phrasing that cuts “news stories, commentaries or editorials distributed through any newspaper, radio station, television station or other recognized news medium unless such news medium is owned or controlled by a political party” out of the ordinance. “The intent of the legislation is to cover blogs as a recognized news entity.”
But if the only textual hook here in the ordinance is the vague — as I argued, likely unconstitutionally vague — term “recognized news medium,” then this isn’t much of an improvement. I like that the supervisors are saying they don’t intend to cover blogs; courts sometimes pay attention to such legislative history. But the text that the legislators enacted is often (probably usually) more important than what they said while enacting it. And leaving blogger free speech at the mercy of judicial interpretations of “recognized news medium” — and decisions whether some kinds of blogs are really news media or actually opinion media or commentary media or whatever else — strikes me as pretty troublesome.
In any case, I hope to see the new version of the bill.
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