Bob Dunning

Court to decide free speech vs. accuracy

By From page A2 | January 19, 2012

For a while there, it appeared that the nasty little dispute over ballot language on Measure C was going to be resolved with some sort of out-of-court compromise. At least that’s what Yolo County Superior Court Judge Samuel McAdam had hoped.

However, according to a news release emailed to me by Measure C opponents — both of them — there will be a showdown in Woodland come Friday afternoon.

Writes Jose Granda of the No on C group, “Authors of ballot arguments against Measure C will wrestle in court with County Clerk Freddie Oakley and her former boss and former County Clerk, Tony Bernhard.” (They actually misspelled “Bernhard,” but I’ve decided not to mention it in print.)

Now, I don’t know about you, but I’d pay good money to see Jose Granda and his tag-team partner, Tommy Randall, wrestle with Freddie Oakley and Tony Bernhard, no matter how you spell his last name. Mud wrestling, preferably. In a cage with barbed wire all the way to the ceiling.

Quoting further from the No on C news release,”Granda and Randall’s position is that they have spoken truthfully about the pitfalls of an all-vote-by-mail election and that the protection of the First Amendment and the California Constitution, Article I, Section 2, protects their freedom to criticize the substance of Measure C and the process under which it is being offered to the public.”

Specifically, Granda and Randall seem as upset with the method of voting (mail only) as they are with the schools tax itself, though make no mistake, these two would oppose Measure C even if we were all required to vote the old-fashioned way by actually showing up in person at the polls.

The news release brings up the case of “Huntington Beach City Council v. Superior Court,” where “the Court (Court of Appeal, Fourth District) noted that any restrictions on ballot language must be drawn narrowly because the First Amendment right to freedom of speech is implicated.”

In Huntington, the court took on relevancy of a ballot argument by noting that Elections Code section 9295 “does not mention relevancy as among the limited bases on which a trial court has authority to strike a statement.” The court further stated “Courts must be extremely reticent in undertaking the essentially political task of playing copy editor with one side’s working of a voters’ pamphlet argument. In the political arena, after all, one person’s relevant argument is another person’s nonsense.”


In the case at hand, however, the charge against Granda and Randall is that their ballot statement — “This all vote-by-mail election is an undemocratic, process which significantly reduces oversight to maintain the integrity of an election” — is in itself false and misleading.

The court in Huntington notes that “Official voters’ pamphlets are limited public forums provided by the government, so the government can constitutionally impose what would be an otherwise unlawful prior restraint of speech by way of precluding false or misleading statements.”

As precedent for this, the court cites “San Francisco Forty-Niners v. Nishioka.” I am not making this up. Why the court didn’t cite “San Francisco Forty-Niners v. Eli Manning” is unclear.

The court reasons that “because freedom of speech is implicated, any restrictions must be narrowly drawn. The statute at issue here expressly requires clear and convincing evidence before the trial court may interfere with a ballot argument, and the Legislature went out of its way to emphasize the narrowness of the scope of any proper challenges by appending the word ‘only’ in front of the heightened evidentiary standard.

“The operative language in section 9295,” the court goes on, “is ‘A peremptory writ of mandate or an injunction shall be issued only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter.’ ” (Chapter 3 of the Elections Code).

In other words, while freedom of speech is partially at issue here, the authors of a ballot argument do not enjoy the exact same freedoms in that regard as they would if making their arguments on a street corner.

The No on C folks have submitted a ballot argument that states: “This all vote-by-mail election is an undemocratic process which significantly reduces oversight to maintain the integrity of an election. It eliminates poll workers, observers, secret ballots, counting with public presence at the polls. Opening and counting ballots days before the polls close is a questionable process.”

If those words can be shown, with clear and convincing proof, to be “false, misleading or inconsistent,” they should, under the law, be struck.

But if Granda and Randall can demonstrate that their charges are at least an open question, their argument should remain.

That is the only question to be decided at Friday’s hearing. Which way the respective combatants may lean on the merits of Measure C itself is simply not relevant to the case at hand.

— Reach Bob Dunning at [email protected]

Bob Dunning

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