Tuesday, April 21, 2009

Supreme Court Clarifies Limits On Government Speech

In Vargas v. City of Salinas (here), the Supreme Court has clarified the permissible limits on government speech regarding a proposed local initiative. After voters put an initiative repealing a local utility users tax on the ballot, the City Council adopted an alternative budget showing the service cuts that would be made if the initiative passed. It also made a one-page summary of the alternative budget available in places such as public libraries and described the budget in a quarterly newsletter sent to the voters approximately a month before the election. The Supreme Court unanimously held that all these activities were permissible.

Several aspects of the decision are noteworthy. First, the court held that public agencies can file an anti-SLAPP motion. Second, the Court rejected the Court of Appeal's holding that election-related speech by a government is only impermissible if it expressly urges the adoption or defeat of a specific measure. Third, the Court made clear that its earlier decision in Stanson v. Mott, 17 Cal. 3d 206 (1976), "does not preclude a governmental entity from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure." Fourth, and finally, the Court held that the "potential danger to the democratic electoral process to which our court adverted in Stanson is not presented when a public entity simply informs the public of its opinion on the merits of a pending ballot measure or of the impact on the entity that passage or defeat of the measure is likely to have. Rather, the threat to the fairness of the electoral process to which Stanson referred arises when a public entity or public official is able to devote funds from the public treasury, or the publicly financed services of public employees, to campaign activities favoring or opposing such a measure." Accordingly, governments may not fund campaign activities such as radio spots and bumper stickers; however, disseminating the government's view of a measure may be permissible if it is done in a factual, and not advocative, way.

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