Amicus Curiae Brief — No on E, San Franciscans Opposing the Affordable Housing Production Act, et al., Petitioners v. David Chiu, in His Official Capacity as San Francisco City Attorney, et al.

Supreme Court briefMar 28, 2024

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Text

No. 23-926

IN THE

Supreme Court of the United States

————

NO ON E, SAN FRANCISCANS OPPOSING THE

AFFORDABLE CARE HOUSING PRODUCTION ACT, ET AL.,

Petitioners,

DAVID CHIU, IN HIS OFFICIAL CAPACITY AS SAN

FRANCISCO CITY ATTORNEY, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICI CURIAE

AMERICANS FOR PROSPERITY FOUNDATION, MANHATTAN

INSTITUTE, AND THE FOUNDATION FOR INDIVIDUAL RIGHTS

AND EXPRESSION IN SUPPORT OF PETITIONERS

————

ILYA SHAPIRO

TIM ROSENBERGER

MANHATTAN INSTITUTE

52 Vanderbilt Ave

New York, NY 20017

(212) 599-7000

ishapiro@manhattan.institute

ABIGAIL E. SMITH

FOUNDATION FOR INDIVIDUAL

RIGHTS AND EXPRESSION

510 Walnut St., Suite 900

Philadelphia, PA 19106

abby.smith@thefire.org

March 28, 2024

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... ii

INTEREST OF AMICI CURIAE ..........................................1

SUMMARY OF ARGUMENT .............................................. 3

BACKGROUND ...............................................................6

ARGUMENT.................................................................... 7

AMERICANS FOR PROSPERITY FOUNDATION V.

BONTA CONTROLS AND EXACTING SCRUTINY

MUST BE APPLIED TO DONOR DISCLOSURE. ...........7

AFPF Held that Exacting Scrutiny is the

Proper Standard for Compelled Disclosure

of Donor Information. .......................................8

AFPF Was Not Limited to Charities, But

Relied Heavily on Political Advocacy

Disclosure Precedent. .......................................9

Exacting Scrutiny Requires Narrow

Tailoring. ......................................................... 11

The First Circuit’s Gaspee Opinion

Misapplied AFPF and Does Not Control

Here. ................................................................ 13

II. DISCLAIMER REQUIREMENTS RELATING TO

BALLOT INITIATIVES THAT DISPLACE POLITICAL

SPEECH RAISE ADDITIONAL CONSTITUTIONAL

CONCERNS. ........................................................... 17

III. THE COURT SHOULD GRANT CERTIORARI TO

STOP THE SPREADING MISAPPLICATION OF

AFPF V. BONTA. ................................................... 23

CONCLUSION ............................................................... 24

TABLE OF AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ........................................... 19

Americans for Prosperity Foundation v.

Bonta,

141 S. Ct. 2373 (2021)

.................................. 4, 7, 8, 9, 11, 12, 13, 15, 23

Americans for Prosperity Foundation v.

Meyer,

No. CV-23-00470, 2024 WL 1195467,

(D. Ariz. Mar. 20, 2024) .................................... 24

Bates v. Little Rock,

361 U.S. 516 (1960) ........................................... 10

Buckley v. Valeo,

424 U.S. 1 (per curiam) ......................... 14, 19, 22

Citizens United v. Federal Election Com’n,

558 U.S. 310 (2010)

........................................................... 5, 15, 18, 22

Doe v. Reed,

561 U.S. 186 (2010) ............................................. 9

iii

Fed. Election Comm’n v. Wisconsin Right To

Life, Inc.,

551 U.S. 449 (2007) ........................................... 20

First Nat. Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ..................................... 14, 20

Gaspee Project v. Mederos,

13 F.4th 79 (1st Cir. 2021)

............................................... 5, 13, 14, 15, 16, 24

Gibson v. Florida Legislative Investigation

Comm.,

372 U.S. 539 (1963) ........................................... 10

McCutcheon v. Federal Election

Commission,

572 U.S. 185 (2014) ........................................... 11

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) ........................................... 20

Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974) ........................................... 20

NAACP v. Button,

371 U.S. 415 (1963) .................................... 10, 11

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449, 462 (1958) .............................. 9, 10

Nat’l Inst. of Family & Life Advocates v.

Becerra,

585 U.S. 755 (2018) ............................... 19, 20, 22

No on E v. Chiu,

85 F.4th 493 (2023) ................... 6, 7, 8, 12, 23, 24

Shelton v. Tucker,

364 U.S. 479 (1960) ........................................... 11

Sweezy v. State of N.H. by Wyman,

354 U.S. 234 (1957) ........................................... 10

Tinker v. Des Moines Independent

Community School Dist.,

393 U.S. 503 (1969) ........................................... 19

Van Hollen, Jr. v. Fed. Election Comm’n,

811 F.3d 486 (D.C. Cir. 2016) ........................... 16

Wooley v. Maynard,

430 U.S. 705 (1977) ........................................... 20

Zauderer v. Office of Disciplinary Counsel of

Supreme Court of Ohio,

471 U.S. 626 (1985) ..................................... 22, 23

Constitutions

U.S. Const. Amend. I

...... 1, 2, 3, 4, 5, 8, 9, 10, 11, 13, 14, 15, 17, 18, 19

INTEREST OF AMICI CURIAE1

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and empowering Americans to address the

most important issues facing our country, including

civil

liberties

and

constitutionally

limited

government. As part of this mission, it appears as

amicus curiae before federal and state courts. AFPF is

interested in this case because protection of the

freedoms of expression and association, guaranteed by

the First Amendment, is essential for an open and

diverse society.

In particular, AFPF has an interest in this case

because laws like the San Francisco disclosure and

disclaimer law threaten the rights of speakers to

speak anonymously and the rights of individuals to

associate freely for whatever reason they wish—

whether temporarily to achieve a single goal,

indefinitely for discrete but ongoing interests, or longterm with consistently aligned organizations. Civil

society requires Americans to be open to associating

at will and changing associations regularly to solve

issues or simply to express themselves. Donors to

large, heterodox organizations may share only a

portion of those organizations’ views. The San

Francisco law places the ability to support diverse

1 No counsel for a party authored this brief in whole or in part

and no person other than amici or its counsel made any monetary

contributions to fund the preparation or submission of this brief.

AFPF notified counsel for all parties of its intent to file this brief

on March 21, 2024. Petitioners consented to the filing and

Respondents graciously stated that they would not object to the

filing as long as AFPF made clear to the Court that notice was

provided seven days before filing.

projects and opinions at risk by implying that

potentially unrelated groups are linked, chilling

participation to only those circumstances in which all

participants are aware of each other are willing to

shoulder all the views of the others—excluding

temporary or limited-purpose cooperation for fear of

being painted with a broad brush. Driving civil society

further into tribalism will operate to the detriment of

us all.

The Manhattan Institute (“MI”) is a nonprofit

public policy research foundation whose mission is to

develop and disseminate new ideas that foster

economic choice and individual responsibility. To that

end, it has historically sponsored scholarship

supporting the rule of law and opposing government

overreach, including in the marketplace of ideas. Its

scholars regularly speak on college and graduateschool campuses, and likewise have faced protest,

shutdown, and cancelation. MI also runs the Adam

Smith Society, which brings together business-school

students and alumni for discussion and debate on how

the free market has contributed to human flourishing

and opportunity for all.

The Foundation for Individual Rights and

Expression (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending the individual

rights of all Americans to free speech and free

thought—the essential qualities of liberty. FIRE

defends First Amendment rights both on campus and

in society at large. See, e.g., Brief of FIRE as Amicus

Curiae in Support of Petitioners in No. 22-555 and

Respondents in No. 22-277, NetChoice v. Paxton, Nos.

22-555 & 22-277 (2023); Brief of FIRE as Amicus

Curiae

Support

Petitioner

and

Reversal, Counterman v. Colorado, 600 U.S. 66

(2023).

FIRE is concerned that the challenged San

Francisco law and others like it both chill and compel

speech in a way that reinforces an “us versus them”

mentality. These laws not only violate the First

Amendment, they reinforce the prevailing dogma that

all Americans must pick a side and forever be

associated with it, no matter the issue. But neither

people nor organizations are monoliths, and treating

them as such will only worsen the heated rhetoric that

predominates our political discourse. Properly

applied, the First Amendment prevents that kind of

mandated tribalism, and this Court should intervene.

SUMMARY OF ARGUMENT

The ways of attempting to circumvent the First

Amendment are limited only by the ingenuity of

politicians and lawyers, a resource not in short

supply. All they must do is add an adjective here, a

self-referential definition there, or perhaps an extra

procedural step, and clear precedent can be

distinguished or ignored, allowing rigorous donor

disclosure protection to be bypassed by asserting a

generic government interest in information or by

defining the relevant population through complex

parameters without reference to necessary causation.

This case presents one such instance in which

donors to nonprofits (and donors to donors) may be

swept up in a discloser and disclaimer scheme and

included on the face of advertising that supports or

opposes a ballot initiative, regardless of whether the

donors support the advertising or are even aware of it.

If allowed to stand, this process would gut the

donor associational rights recognized by this Court in

Americans for Prosperity Foundation v. Bonta, 141 S.

Ct. 2373 (2021) (“AFPF”), while imposing additional

First Amendment injury by compelling speech and

association—or the appearance thereof—that may not

even be accurate. For donors who support a charity’s

general mission, or a portion of that mission, and who

may not police the full range of the charity’s interests

or know who other donors to the organization are,

surprise disclosure imposes a shocking price, while

anticipated disclosure re-imposes the chill on

association that AFPF recognized and minimized.

In AFPF, the Court held that the exacting scrutiny

standard requires narrow tailoring, or a “means-end

fit” between a donor disclosure mandate and the

sufficiently important governmental interest the

mandate is meant to promote. AFPF, 141 S. Ct. at

2385–86. In AFPF, exacting scrutiny was applied to

the California Attorney General’s mandate for

blanket disclosure of donors to charitable

organizations. Id. at 2385. But AFPF was not limited

to narrow categories of charities or particular formats

of disclosure; nor did it include loopholes that could

allow the government exceptions that, if publicly

known, would chill First Amendment exercise, and if

not known, would subject donors to surprise

disclosure and implied association with unrelated

messages and parties.

Imposing these complexities on people who simply

want to support a cause with no purpose or intent to

finance a particular communication, imposes an

unconstitutional burden on speech and association.

“The First Amendment does not permit laws that

force speakers to retain a campaign finance attorney,

conduct demographic marketing research, or seek

declaratory rulings before discussing the most salient

political issues of our day. Prolix laws chill speech for

the same reason that vague laws chill speech: People

of common intelligence must necessarily guess at the

law’s meaning and differ as to its application.”

Citizens United v. Federal Election Comm’n, 558 U.S.

310, 324 (2010) (cleaned up). This prohibition against

vague and prolix laws should forbid laws that expose

donors to disclosure for speech the donor did not

intentionally fund. Without a tight relationship

between the donor and the speech, the means-end test

cannot be satisfied.

This case is not alone. Since AFPF was decided, the

First Circuit has also blessed a disclosure scheme that

lacks means-ends connection. In Gaspee Project v.

Mederos, rather than ensure causation between the

First Amendment burden and the government’s goal,

Rhode Island’s disclosure and disclaimer scheme

replaced a means-end test with an elaborate set of

parameters regarding who would be affected by the

scheme rather than why they would be affected—

essentially substituting narrow application for

narrow tailoring. 13 F.4th 79, 82, 88–9 (1st Cir. 2021).

Adding another layer of injury, the San Francisco

law empowers the public to inform on anonymous

speakers who could then be subjected to civil,

administrative, and criminal penalties. This is not the

degree of First Amendment protection envisioned by

AFPF and, if allowed to stand, would gut donor

privacy by allowing a complete decoupling between

donor intent and any downstream use of funds.

BACKGROUND

The San Francisco Sunlight on Dark Money

Initiative, changed the “disclaimer requirements for

advertisements paid for by independent political

committees” to include “a disclaimer listing their top

three contributors of $5,000 or more” and if “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.” No on E v. Chiu, 85 F.4th 493, 498–99

(9th Cir. 2023). Advertisements regarding a ballot

initiative now must include disclaimers with up to

nine “contributors” listed.

“Print ads must include the disclaimers in text

that is ‘at least 14-point, bold font’” and “Audio and

video advertisements must begin by speaking the

required disclaimers of major contributors and

secondary major contributors.” Id. For video or audio

ads, this means that over 30-seconds of disclaimer

must be announced before the substance of the

message is reached, absorbing the bulk of any ad

under 60 seconds long. Print ads are “largely or

entirely consumed by an even longer ‘disclaimer’ when

printed.” Pet. at 1. Thus, either the majority of the

speaker’s message is lost to the City’s compelled

message or speakers must spend more funds on longer

ads to deliver the City’s message—assuming any

listener could tolerate the disclaimer long enough to

reach the substance of the message. For listeners who

can’t hack the legalese, the message is lost altogether.

There is no exclusion for donors who are not aware

of the message and no assurance that donors had any

intent to support it. Pet. at 2. Moreover, the City

maintains a database of financial disclosures, which

must also be announced within the ad. No on E, 85

F.4th at 498–99.

These mandates are in addition to existing

California law requiring disclosure of donations to

“committees” and on-ad disclaimers of the committee

paying for an ad and the top-three contributors of

$50,000 or more. No on E, 85 F.4th at 497–98.

Violations of the San Francisco law “are

punishable by civil, criminal, and administrative

penalties.” Id. at 499. “Any individual who suspects a

possible violation may file a complaint with the Ethics

Commission, City Attorney, or District Attorney.” Id.

ARGUMENT

AMERICANS FOR PROSPERITY FOUNDATION V.

BONTA CONTROLS AND EXACTING SCRUTINY

MUST BE APPLIED TO DONOR DISCLOSURE.

AFPF v. Bonta controls the San Francisco Sunlight

on Dark Money Initiative’s demand for donor

disclosure (“disclosure provision”), yet the Ninth

Circuit did not faithfully apply its holding. Like the

“blanket demand for Schedule Bs” in AFPF, the

disclosure requirement here is subject to exacting

scrutiny. AFPF, 141 S. Ct. at 2385. The second

provision, which requires donor identification to be

prominently

placed

political

advertising

(“disclaimer provision’) in lieu of whatever message

the speaker would prefer to deliver is subject to strict

scrutiny in accordance with traditional compelled

speech.

The disclosure provision here, unlike the

purportedly confidential2 disclosure in AFPF, does not

appear guarantee confidentiality. Accordingly, the

associational chill identified in AFPF applies with

even greater force where disclosure to the general

public is not only presumed, but is facilitated.3 Id. at

2388 (“Our cases have said that disclosure

requirements can chill association even if there is no

disclosure to the general public.”) (cleaned up).

The government asserts a general informational

interest in donors supporting or opposing a ballot

initiative but has not identified the means-end fit

required by narrow tailoring. No on E, 85 F.4th at 505.

The concerns that informed this Court’s holding in

AFPF are likewise present here, chilling First

Amendment rights of donors and speakers in the face

of government demands to know who is speaking.

AFPF Held that Exacting Scrutiny is

the Proper Standard for Compelled

Disclosure of Donor Information.

AFPF v. Bonta was a facial challenge to a

regulation requiring charities operating in California

to register with the Attorney General’s office and

disclose major donors by filing their IRS Form 990.

AFPF, 141 S. Ct. at 2379–80. The disclosure

requirement was not related to any specific activity,

speech, or issue area, but solely to annual registration

renewal. Id. at 2380. The case came before the Court

with the contours of the applicable standard of review

unsettled. Id. at 2382–83. While the lower courts had

2 AFPF, 141 S. Ct. at 2387.

3 See www.sfethics.org for search function.

nominally applied exacting scrutiny, there was

disagreement whether narrow tailoring was required.

Americans for Prosperity Foundation, a public

charity that was subject to the regulation, challenged

the blanket donor disclosure requirement on the basis

that it burdened the First Amendment associational

rights of its donors and that exacting scrutiny

required more than the lenient standard applied by

the Ninth Circuit. Id. at 2380–81.

This Court held that, at the least, exacting

scrutiny applies to compelled disclosure requirements

and that narrow tailoring is a necessary element of

that standard. Id. at 2383. Exacting scrutiny thus lies

between strict scrutiny, with its least restrictive

means test, and the “substantial relation” standard

noted in Doe v. Reed, 561 U.S. 186, 196 (2010), to

require narrow tailoring, but not least restrictive

means. Id. at 2383–84.

AFPF Was Not Limited to Charities,

But Relied Heavily on Political

Advocacy Disclosure Precedent.

The precedential bases for applying exacting

scrutiny to donor disclosure were derived largely from

cases protecting political speech and association, such

as NAACP v. Alabama ex rel. Patterson, because

“compelled disclosure of affiliation with groups

engaged in advocacy may constitute as effective a

restraint on freedom of association as other forms of

governmental action” AFPF, 141 S. Ct. at 2382 (citing

357 U.S. 449, 462 (1958)). The Court also relied on

cases reviewing electoral disclosure regimes but made

clear that “exacting scrutiny is not unique to electoral

disclosure regimes.” Id. at 23834 (“As we explained in

NAACP v. Alabama, it is immaterial to the level of

scrutiny whether the beliefs sought to be advanced by

association pertain to political, economic, religious or

cultural matters. Regardless of the type of association,

compelled disclosure requirements are reviewed

under exacting scrutiny.”) (cleaned up). And the

government cannot bypass constitutional protection

by defining labels for new categories of speech to

exclude them from the First Amendment. NAACP v.

Button, 371 U.S. 415, 429 (1963) (“a State cannot

foreclose the exercise of constitutional rights by mere

labels”). Thus, exacting scrutiny applies squarely to

disclosure regimes across the board, including to the

political advocacy regime here.

4 See Gibson v. Florida Legislative Investigation Comm., 372 U.S.

539, 557 (1963) (“an adequate foundation for inquiry must be laid

before proceeding in such a manner as will substantially intrude

upon and severely curtail or inhibit constitutionally protected

activities or seriously interfere with similarly protected

associational rights.”); Button, 371 U.S. at 438 (“Broad

prophylactic rules in the area of free expression are suspect.”);

Bates v. Little Rock, 361 U.S. 516, 527 (1960) (the municipalities

have failed to demonstrate a controlling justification for the

deterrence of free association which compulsory disclosure of the

membership lists would cause”); Sweezy v. State of N.H. by

Wyman, 354 U.S. 234, 245 (1957) (“when the investigative

process tends to impinge upon such highly sensitive areas as

freedom of speech or press, freedom of political association, and

freedom of communication of ideas” compulsory process must be

carefully circumscribed.).

Exacting Scrutiny Requires Narrow

Tailoring.

Under AFPF, “exacting scrutiny requires that

there be a substantial relation between the disclosure

requirement

and

sufficiently

important

governmental interest, and that the disclosure

requirement be narrowly tailored to the interest it

promotes”. AFPF, 141 S. Ct. at 2385 (cleaned up).

Thus, “even a legitimate and substantial” government

interest “cannot be pursued by means that broadly

stifle fundamental personal liberties when the end

can be more narrowly achieved.” Id. at 2384 (citing

Shelton v. Tucker, 364 U.S. 479, 488 (1960)).

The narrow tailoring element is critical in cases

involving burdens on the First Amendment. AFPF

141 S. Ct. at 2384 (quoting Button, 371 U.S., at 433)

(“Narrow tailoring is crucial where First Amendment

activity is chilled—even if indirectly—‘[b]ecause First

Amendment freedoms need breathing space to

survive.’”). And, as AFPF’s reliance on electoral cases

for its description of narrow tailoring shows, the

election context provides no exemption from narrow

tailoring. In McCutcheon v. Federal Election

Commission, for example, a plurality of the Court

explained that “[i]n the First Amendment context, fit

matters. Even when the Court is not applying strict

scrutiny, we still require a fit that is not necessarily

perfect, but reasonable; that represents not

necessarily the single best disposition but one whose

scope is in proportion to the interest served, that

employs not necessarily the least restrictive means

but a means narrowly tailored to achieve the desired

objective.” 572 U.S. 185, 218 (2014) (cleaned up).

In AFPF, a single layer of blanket donor disclosure

failed narrow tailoring because it was overbroad and

lacked any “tailoring to the State’s investigative

goals” AFPF, 141 S. Ct. at 2387. Here, of course, one

must ask how an even more attenuated multi-level

disclosure requirement could be tailored to achieve a

vaguely defined interest in “informing voters about

who funds political advertisements”. No on E., 85

F.4th at 505. To comply with narrow tailoring, the

chill at each donor level must be considered in light of

whether disclosure would achieve any informational

interest, much less provide information that would be

correct and material. As the Petition explained, multilevel disclosure is likely to misinform whenever the

secondary-contributor did not intend or even know its

donation was made to an organization that later used

its own funds for a political ad. Pet. at 22–24.

Given the fungible nature of money, it would be

incorrect, of course, to frame a multi-level donor

relationship as causing the secondary donor’s funds to

be used by its donee for political advertising. Unless

the donee was so small, or the expenditure so large,

that the advertisement could not have been funded

without using the first-level donor’s funds, it would be

impossible to establish even but-for causation much

less the necessary agency to deem a donor responsible

for the message. The San Francisco law does not call

for this but-for relationship between the secondarycontributor’s funds and the ultimate expenditure.

Thus the means-ends test fails at the first step, before

the multifarious other objections raised by Petitioners

in terms of voter confusion, compelled association, and

so forth are even reached. Pet. 22–24; See also No on

E, 84 F.4th at 523–24 (Van Dyke, J. dissenting).

Because “exacting scrutiny is triggered by state

action which may have the effect of curtailing the

freedom to associate, and by the possible deterrent

effect of disclosure,” AFPF, 141 S. Ct. at 2388 (cleaned

up), narrow tailoring must be rigorously applied lest

exacting scrutiny be exacting in name only.

The First Circuit’s Gaspee Opinion

Misapplied AFPF and Does Not

Control Here.

Gaspee Project v. Mederos demonstrates how First

Amendment speech and associational rights can be

undermined by misapplying exacting scrutiny and

bypassing the necessary connection between a donor’s

purpose and a targeted communication. Gaspee was

decided shortly after the Court issued its opinion in

AFPF, and dealt with disclosure of funding sources for

certain independent expenditures5 and electioneering

communications.6 13 F.4th 79, 82 (1st Cir. 2021).

Gaspee nominally embraced AFPF, but misapplied

the narrow tailoring element. Id. at 85.

Gaspee was similar to AFPF in addressing

mandatory disclosure of donors to non-profits. Like

the annual blanket demand for disclosure in AFPF,

the Act in Gaspee required filing with the State Board

of Elections a report disclosing all organization donors

An “‘independent expenditure’ . . . ‘expressly advocates the

election or defeat of a clearly identified candidate, or the passage

or defeat of a referendum.’” Gaspee Project v. Mederos, 13 F.4th

79, 82–3 (1st Cir. 2021).

6 An “‘electioneering communication’ . . . identifies a candidate or

referendum’” and “is made within sixty days of a general election

or referendum or within thirty days of a primary election.” Id. at

83.

over $1,000, but it also imposed an on-communication

disclaimer identifying the five largest donors from the

preceding year.7 Id. at 83. But as the not-for-profit

plaintiffs in Gaspee made clear, their interest was in

issue advocacy, not candidate support. Id. at 82, 85.

Gaspee allowed First Amendment protection of

core political speech to be circumvented for messages

delivered during the time period the speech was likely

to be most salient, distinguishing it from speech that

takes place outside an election context, 13 F.4th at 89.

But neither the First Amendment nor AFPF includes

such a distinction.

Gaspee also found no relevant distinction between

issue advocacy versus candidate-specific advocacy,

despite relying on Buckley and Citizens United, which

acknowledge a government anti-corruption interest in

who pays for messaging supporting or opposing a

specific candidate but make no such argument

regarding issue advocacy. 13 F.4th at 85–86.8 Instead

of relying on a purpose-based rationale, Gaspee

resorted to a plethora of characteristics unrelated to

the only relevant criterion: whether there is a means7 Donors could opt out of the disclosure requirement by electing

that donations not be used for funding of independent

expenditures or electioneering communications. Id. at 82.

Buckley explained the rationale for disclosure of donor

information for specific candidates to avoid corruption or the

appearance thereof. Buckley v. Valeo, 424 U.S. 1, 26 (1976). This

rationale does not apply to contributions to support an idea or to

discuss an issue because an idea cannot be corrupted. First Nat.

Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“The risk of

corruption perceived in cases involving candidate elections,

simply is not present in a popular vote on a public issue.”)

(cleaned up).

end relationship between the government’s goal and

the First Amendment burden imposed. Thus while

Gaspee nominally adopted the exacting scrutiny

standard from AFPF, its analysis misapprehended

what it means for a law to be “narrowly tailored to

achieve the desired objective.” 141 S. Ct. at 2383.

The asserted government interest in Gaspee was in

an “informed electorate” which it held to be

“sufficiently important to support reasonable

disclosure and disclaimer regulations.” 13 F.4th at 86.

But under AFPF it is not enough to invoke tautologies

such as demanding information for the purpose of

being informed.9 Something more is needed; and while

the notion of an “informed electorate” sounds

appealing, not all information is created equal.

Misleading or irrelevant information, for example,

diminishes an electorate’s ability to absorb

meaningful information. What is the government

interest in confusing the public by dousing it in

irrelevancies?

Instead, whether narrow tailoring is satisfied

requires evaluating the purpose to which the

demanded information would be put. Gaspee does

none of that. Instead, Gaspee focuses on time and size

limitations—which affect the pool of speakers and

messages subject to the law but fail to explain why the

AFPF did not address disclaimers nor any other form of

compelled speech and Buckley, likewise, involved disclosure but

not disclaimers. Citizens United, which addressed mandatory

disclaimers was decided under the pre-AFPF annunciation of

exacting scrutiny and thus required only “a “substantial

relation” between the disclosure requirement and a “sufficiently

important” governmental interest.” Citizens United, 558 U.S. at

366.

law should be applied to them at all. 13 F.4th at 88–9.

Much like a law that applies only to redheads or

people with dogs without any explanation of how that

narrow application creates the desired end, this type

of analysis substitutes an exercise in narrow

application for narrow tailoring. But infringing the

rights of a small group is still infringement.

Moreover, Gaspee bypasses any analysis of

whether the donations in question were intended to

support the particular communication. Thus unlike

laws that include “for the purpose of” or “designated

to support” language,10 simply listing the five largest

donors to an organization for the preceding year lacks

the necessary link between the donor information and

the communication on which a disclaimer is made.

Having “tailored” the law to nonrelevant

characteristics, Gaspee goes one step further—

blessing, rather than condemning as it should, the

statutory demand that donors silence themselves by

opting out of constitutionally protected messaging to

avoid being outed by the organizations to which they

donate. 13 F.4th at 89. Donors can avoid exposure

under the law by either limiting the size of their

donations or by opting out of allowing their donations

to be used for the restricted forms of speech. Id.

Reliance

self-censorship

excuse

unconstitutional law is a dangerous step that creates

a moral hazard, allowing constitutional protections to

10 See e.g., Van Hollen v. Fed. Election Comm’n, 811 F.3d 486,

492 (D.C. Cir. 2016) (discussing “purpose requirement” in

context of independent expenditures under the Federal Election

Campaign Act).

be bypassed by shifting the burden to the speaker.

Nothing in AFPF endorses that approach.

This Court has not yet had to grapple with whether

the First Amendment allows compelled disclosure of

donors with no discernable connection to a particular

communication, such as an earmarked contribution or

contributing to the PAC. Gaspee provides no guidance

on how this case or any such a case should be decided.

II.

DISCLAIMER REQUIREMENTS RELATING TO

BALLOT

INITIATIVES

THAT

DISPLACE

POLITICAL SPEECH RAISE ADDITIONAL

CONSTITUTIONAL CONCERNS.

Disclaimer mandates that displace core political

speech violate the Constitution on many levels and

lack precedential support. First, they compel speech

by forcing the primary speaker to disclose information

that it otherwise would not disclose. Second, they

burden speech by diverting time or space (or the

money used to purchase them) away from the desired

message. Third, they chill the primary speakers and

any upstream donors who may avoid speaking or

contributing to speech to avoid the unwanted

disclaimer. Fourth, they create a potentially false

impression of association between entities that each

may have contributed funds to other entities but have

no direct relationship with each other. Fifth, they

create the potentially false impression that donors

support a message they know nothing about or would

disagree with if given the chance.

With this magnitude of infringement, the

governmental justification for compelled disclaimers

must be rigorous in terms of both legal precedent and

a clear and reliable means-end test. Here, it is not.

This Court’s treatment of disclaimer requirements

has been limited, and thus the body of caselaw on

which the government may rely to elucidate the

narrow circumstances in which it may evade the First

Amendment is thin and should not be applied broadly.

The issue came before the Court obliquely in

Citizens United, embedded in a challenge to a ban on

a nonprofit corporation’s speech. 558 U.S. at 318. The

opinion drew a distinction between disclaimers and

disclosures on the one hand and campaign

contribution and spending limitations on the other

hand, but did not address the constitutional

distinction between disclosure requirements and

disclaimer requirements. That distinction was not

necessary to the decision, did not figure in the

analysis, and does not appear to have been advanced

by the parties. Thus, Citizens United is of limited

utility in analyzing how a disclaimer regime may

impose additional constitutional burdens on top of

those already imposed by mandatory disclosure to the

government.

In Citizens United, the unified treatment of

disclosures and disclaimers applied only to

communications that “referred to then-Senator

Clinton by name,” Id at 368, which thus fell squarely

within Buckley, without informing the question of

mandatory disclaimers regarding other forms of

messaging. Moreover, the required disclaimer was

small in scope, “displayed on the screen in a clearly

readable manner for at least four seconds”. Id. at 366.

Taken in the context of a 90-minute movie11 such a

disclaimer represents a very small slice of real

11 Id. at 319.

estate—which does not excuse the infringement but

minimizes the burden that informs the means-end

test.12 The limited scope of the disclaimer and the lack

of challenge on the basis of compelled speech cast into

doubt the extent to which Citizens United controls

where disclaimers are intrusive and displace

protected speech.

Under AFPF, exacting scrutiny with the rigor of

narrow tailoring is the standard for donor disclosures;

and under the Citizens United, limited to its facts,

exacting scrutiny applies to 4-second disclaimers

appended

Buckley-style

candidate-specific

messaging. But that calculus must change when those

narrow circumstances do not apply because “[t]his

Court’s precedents do not permit governments to

impose content-based restrictions on speech without

persuasive evidence of a long (if heretofore

unrecognized) tradition to that effect.” Nat’l Inst. of

Family & Life Advocates v. Becerra, 585 U.S. 755, 767

(2018) (cleaned up) (“NIFLA”). Here, that long

tradition, to the extent it exists, is limited to Buckley

and disclaimers that may implicate candidate-specific

corruption concerns. Buckley, 424 U.S. at 26–27

(recognizing a governmental interest in preventing

quid pro quo corruption). By contrast the pedigree of

First Amendment protection against compelled

speech is long and diverse. 303 Creative LLC v. Elenis,

600 U.S. 570, 586 (2023) (“Generally . . . the

government may not compel a person to speak its own

preferred messages.”) (citing Tinker v. Des Moines

Independent Community School Dist., 393 U.S. 503,

The disclaimer also applied to 10-second and 30-second

advertisements, Id. at 369, which represents a greater, but still

limited, intrusion in scope as well as content.

505–506 (1969); Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241, 256 (1974); Wooley v. Maynard,

430 U.S. 705, 714 (1977); NIFLA, 585 U.S. at 766). So

when the state hijacks the bulk of an issue-based ad

for its own message, compelling content-based speech,

strict scrutiny must be applied. See Fed. Election

Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449,

453 (2007) (distinguishing express advocacy of the

election or defeat of a clearly identified candidate from

issue advocacy referring to a clearly identified

candidate’s position on an issue, but not expressly

advocating his election or defeat); accord Bellotti, 435

U.S. at 790 (distinguishing candidate elections from

votes on public issues).

Applying strict scrutiny, the compelled disclaimer

here is unconstitutional. Indeed, it does not even

satisfy exacting scrutiny. But the “least restrictive

means” test drives the last nail into the coffin.

First, as the Petition explains, the City has failed

to establish a “sufficiently important government

interest” because the interest it asserts is irrational.

Information for the sake of information without more

is not important. Pet. at 22 citing McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334, 348 (1995) (“The

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.”). And

information that is misleading or confusingly vague

by implying non-existent relationships or imputing

non-existent knowledge is almost certainly not

important to any legitimate governmental interest.

Second, the San Franciso law lacks a sufficient

nexus between the information required to be

disclosed and the interest asserted. It thus fails even

exacting scrutiny by providing no causal link between

disclosing multiple levels of donors and any

informational need of a voter. Instead it demands

layers of disclosure that, if upheld, would have no

limiting principle. Why two layers of disclosure? Why

not three? Or four? And why demand the largest

donors to an underlying charity that may have many

interests unrelated to the ad while excusing smaller

donors that may have donated with the express

purpose of funding the communication? Even the first

layer of disclosure, which contravenes constitutional

protection for anonymous speech is suspect. Each

additional layer heaps error upon error. And, without

Buckley’s interest in preventing corruption of elective

officials or the appearance thereof, it is unclear how

even a single layer of disclosure may be justified.

The disclaimer requirement is, if anything, even

worse. Even if disclosure could be justified in narrow

circumstances, it would not follow that subjecting the

population at large to lengthy and tedious lists of

names promotes any interest at all. If anything, the

approach is perverse by subjecting listeners or readers

to tiresome recitations of names before they have a

chance to find out whether the substance of the ad

may be meaningful to them. The likely outcome would

be listeners who have mentally checked out before the

message even begins or who have devolved into

speculation regarding how the names may be related

before the substance of the message comes along and

fails to answer that question.

Moreover, each additional layer of disclaimer must

be weighed against the substance of the speech it

displaces—causing the speaker to limit its own

message. As Buckley recognized, a “restriction on the

amount of money a person or group can spend on

political communication during a campaign

necessarily reduces the quantity of expression by

restricting the number of issues discussed, the depth

of their exploration, and the size of the audience

reached.” Buckley, 424 U.S. at 19. Thus, while under

Citizens United, disclosure/disclaimer was touted as

less onerous than a ban, here, the magnitude of the

San Francisco disclaimer funnels such a large portion

of expenditures away from the desired message that

it acts like an unconstitutional limit on speech.

Citizens United, 558 U.S. at 318. As this Court held in

NIFLA, an extensive notice requirement that “drowns

out the facility’s own message” did not even meet the

lower Zauderer standard. 585 U.S. at 778; Zauderer v.

Office of Disciplinary Counsel of Supreme Court of

Ohio, 471 U.S. 626, 651 (1985) (upholding mandatory

inclusion in attorney advertising of “purely factual

and uncontroversial information about the terms

under which his services will be available.”).

Finally, the disclaimer requirement cannot satisfy

the strict scrutiny standard applicable to compelled

speech because it is not the least restrictive means to

accomplish the asserted goal of providing information

to voters. It is overinclusive by sweeping up donors

that have no established link to the messaging. It is

underinclusive by failing to capture donors with the

intent and purpose of funding the advertising but who

fail to meet the donation thresholds. Thus, the

government seeks to compel speech that cannot

achieve the City’s alleged interest much less by doing

so via the least restrictive means.

III.

THE COURT SHOULD GRANT CERTIORARI TO

STOP THE SPREADING MISAPPLICATION OF

AFPF V. BONTA.

The Court should grant certiorari because,

although the AFPF decision is relatively recent,

misapplication of exacting scrutiny has already begun

to cause mischief. Here, nine judges of the Ninth

Circuit dissented from the denial of rearing en banc

raising a variety of concerns flowing from misapplied

standards. 85 F.4th at 518 (Van Dyke, J. dissenting)

(“This is not the exacting scrutiny the Supreme Court

reminded our circuit to undertake when it reversed us

only two years ago.”) (citing AFPF, 141 S. Ct. 2373).

No on E fails exacting scrutiny because it inverts the

causation required by means-ends testing. Id. at 522

(“the panel upheld the ordinance by identifying a

government interest that is not advanced—and in fact

is undercut—by the regulation.”). Moreover, as Judge

Collins explained in dissent, “the panel’s decision . . .

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.” 85

F.4th at 511 (Collins, J. dissenting). This application

of “exacting” scrutiny employs a more lenient

standard than the “decidedly lower standard” of

Zauderer. Id. at 513 (emphasis in original).

Likewise, Gaspee has created precedent in the

First Circuit replacing the means-end test of narrow

tailoring with a narrow application test that evades

causation by focusing on who rather than why.

These cases recently made an appearance in

Americans for Prosperity v. Meyer, a case like this one,

in which the district court held that multi-level donor

disclosure mandates satisfy exacting scrutiny. No.

CV-23-00470, 2024 WL 1195467, at *8, 14 (D. Ariz.

Mar. 20, 2024) (citing No on E, 85 F.4th at 515 and

Gaspee, 13 F.4th at 87). The risk, of course, is that

these permutations will spread, turning exacting

scrutiny into the test applied to attenuated

government interests with application schemes that

are so prolix that they must be “exacting”. This is not

what the means-ends test from AFPF stands for and

such application will end up undermining

associational freedom rather than protecting it.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition.

Respectfully submitted,