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).

[dissent from denial of en banc review]  

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.

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.

cases cited:

 Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).

Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam).

See ACLU of Nev. v. Heller, 378 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).

fire@thefire.org215-717-FIRE

The constitutional guarantee of free speech has its "fullest and most urgent application" in political campaigns. Brown v. Hartlage, 456 U.S. 45, 53, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)). Therefore, the State bears a "well-nigh insurmountable" burden to justify RCW 42.17.530's restriction on political speech. Meyer v. Grant, 486 U.S. 414, 425, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). This burden requires the court to apply "exacting scrutiny" to RCW 42.17.530(1)(a). Meyer, 486 U.S. at 420, 108 S. Ct. 1886. See also Buckley v. Valeo, 424 U.S. 1, 39, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Exacting scrutiny will invalidate the statute unless the State demonstrates a compelling interest that is both narrowly tailored and necessary. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347, 115 S. Ct. 1511, 1519, 131 L. Ed. 2d 426 (1995); Burson v. Freeman, 504 U.S. 191, 198, 112 S. Ct. 1846, *695 119 L. Ed. 2d 5 (1992). Such burdens are rarely met. Burson, 504 U.S. at 199-200, 112 S. Ct. 1846. Ino Ino, Inc. v. City of Bellevue, 132 Wash. 2d 103, 114, 937 P.2d 154 (1997) ("The State bears the burden of justifying a restriction on speech."). washington v no on 119! committee (WA 1998).

could quote from comm. v. wadzinski as well.

I. Anonymous Speech and the First Amendment

First Amendment protection for anonymous speech was first articulated a half-century ago in the context of political speech, Talley v. California, 362 U.S. 60, 64–65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), but as the Supreme Court later observed, the Talley decision harkened back to “a respected tradition of anonymity in the advocacy of political causes.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). 

Turning to the substantive issue in the case, we must determine whether section 3-9-3-2 violates Stewart's First Amendment right to freedom of speech. In McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995), the Supreme Court struck down as unconstitutional an Ohio statute that required all printed political campaign literature in the state to contain the name and address of the person or head of the organization responsible *1054 for the publication of the literature. The Court held that the Ohio statute violated the First Amendment because it burdened core political speech in a manner that was not narrowly tailored to serve an overriding state interest. Id. at ___ - ___, 115 S. Ct. at 1519-24. Stewart contends that this case is controlled by McIntyre. Stewart is correct.

The Supreme Court made clear in McIntyre that campaign literature in support of a candidate for elective office is "core political speech" that is entitled to the fullest protection of the First Amendment.