Posted by Eugene Volokh:
San Francisco Regulating Bloggers?
There's been much talk recently about a San Francisco ordinance that
might regulate campaign-related speech by bloggers (see [1]this
InstaPundit post for some pointers). The proposed text of the March 30
version, the version that I think is the latest draft, is [2]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").
(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 [3]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.
References
1. http://instapundit.com/archives/022200.php
2.
http://www.sfgov.org/site/uploadedfiles/bdsupvrs/committees/materials/041489.pdf
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=425&invol=610
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