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Regulations on Slate Mailers Put a Muzzle on Free Speech

The Constitution protects a local candidate's desire to be linked with a popular state or national candidate on a slate mailer.

July 21, 2002|JAMES V. LACY | James V. Lacy served as counsel to slate mail publishers in the successful challenge to Proposition 208. He is a Dana Point resident and chairman of the city Planning Commission.

The Orange County Board of Supervisors on Tuesday made an ill-advised bid to regulate the content of election slate mailers, an increasingly popular campaign tool.

The effort was hardly inspired by the high ideals of a Thomas Jefferson. Instead, it looks more like a page out of the Tammany Hall playbook, as well as a form of retribution for Chris Norby's defeat of Supervisor Cynthia P. Coad last March. But supervisors should have risen above old divisions created by the proposed airport at the closed El Toro Marine base and rejected this ill-advised infringement on freedom of speech.

Slate mailers are widely used in California. Voters receive plenty of slate mail before each election, often advocating party or "issue-based" campaigning. Slate mail also is highly regulated by the state. Publishers must print certain disclosures and file instant electronic financial disclosure reports with the state; these public records are open to examination by any interested party.

To avoid conflicts with local government campaign laws, state law provides that the costs for production and distribution of slate mailers are not considered contributions or expenditures for candidates. The state rules explicitly regulate county-only slate mailers. California has preempted local regulation of slates in favor of one consistent, logical and statewide set of rules so publishers won't face potentially conflicting rules in the 58 counties.

State preemption, though, makes local rules unenforceable and unconstitutional. In addition, slate mail has also been found by a federal judge to be a highly protected form of speech.

Last year, a federal judge declared the slate mail provisions of 1996's Proposition 208 to be unconstitutional. In the case of California Prolife Council PAC vs. FPPC, a federal judge determined that: "Since the slate mailers are a form of 'core political speech,' I must apply 'exacting scrutiny,' and uphold the restrictions only if they are narrowly tailored to serve an overriding state interest."

The judge ruled Proposition 208's requirements on slate mail violated the 1st Amendment. The judge also found that slate mail was not only an inexpensive form of campaigning that assists candidates and causes with low budgets, but also one that "lends itself to coalition campaigning" based on issues.

The slate mail controversy in Orange County brings into focus a county attempt to regulate (some might say stifle) coalition campaigning and political speech. Coad complains that a slate mail organization that received significant funds from the Measure W campaign for advertising gave Norby strong exposure--what Coad believes amounted to an "unreported campaign donation."

Norby was a well-known opponent of an airport at El Toro and supported Measure W. Coad was a key member of the pro-airport majority among county supervisors. Norby became the first challenger in 22 years to oust an incumbent supervisor. Coad believes Norby's featuring in the slate mailers was unfair.

The fact is that slate mail publishers have a right to list any candidate or measure they wish in their mailings, and they don't have to charge candidates whose names appear.

State law provides that publishers must publicly disclose the "free" candidates on forms filed with the state. It is extremely common for slate mail publishers to give prominent space to a presidential candidate at no charge. The Constitution protects a local candidate's desire to be linked with a popular state or national candidate on a slate mailer.

The same is true on issues of common interest, say, support for Measure W. A statewide candidate might, for example, want to be associated with such a popular local issue or candidate.

The only overriding interest that the U.S. Supreme Court has found to justify a campaign restriction is political corruption. Like other forms of election media, slate mail is subject to deception and abuse. But the judge in the California Prolife case found slate mail was not subject to any more abuse than other forms of political campaigning, including TV, radio, telephone calls, newspaper advertising and direct mail.

Yet Coad's proposal singled out slate mail for a proposed "25% of the surface area" litmus test. That means if 25% of the mailer deals with a county campaign, it gets regulated. But the county has not revealed or articulated any government interest in support of the restriction that can pass constitutional muster. The county hasn't told us how it can justify the "25% of the surface area" of a slate mailer represents political corruption, whereas 24% is not.

Coad may feel that Norby received an unfair advantage. But under state law, a "pro-airport" slate mailer could have just as easily featured Coad. Supervisors must understand that any lesson to be drawn from Coad's defeat has more to do with issues, performance in office and campaign strategy, than it does with enacting a new slate mail law that is unconstitutional on at least two counts.

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