California appeals court: Group trashing governor doesn't have to list backers

By The Associated Press

09.27.02

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SAN FRANCISCO — A state appeals court says a group that trashed Gov. Gray Davis on the airwaves last year neither has to register as a political committee nor disclose its financial backers.

The decision in Davis v. American Taxpayers Alliance, announced late on Sept. 25, may clear the way for fresh, anonymous attack ads as the November election nears. The move by the 1st District Court of Appeal overturns a lower court judge in a case balancing the First Amendment and California's rules requiring disclosure.

A San Francisco judge ruled in September 2001 that a Washington, D.C.-based taxpayer group that ran television advertisements last year attacking Davis must identify its financial backers and register as a political committee under the California Political Reform Act.

San Francisco County Superior Court Judge David Garcia ruled the act requires the American Taxpayers Alliance to reveal its contributors and expenses for the first six months of 2001, a decision that was stayed pending appeal.

But the appeals court noted that the commercials, which criticized Davis' handling of the energy crisis, were protected speech immune to the Political Reform Act's requirements. In weighing First Amendment rights of speech, the San Francisco-based appeals court ruled that the act did not apply because the ads never clearly urged television viewers to vote for or against Davis.

The court wrote that the disclosure rules under the act apply only when there is express language to vote for or against a candidate — rules courts have interpreted as not infringing First Amendment rights of speech.

"We iterate that the language of the communication must, by its express terms, exhort the viewer to take a specific electoral action for or against a particular candidate," the court ruled 3-0.

James Bopp, the Indiana attorney representing the taxpayer alliance, says the decision means the alliance or others could air advertisements in the coming weeks before the Nov. 5 election without registering as a political committee and disclosing donors.

"All citizens have the right to criticize public officials," Bopp said. "This is not the Soviet Union."

The group began airing the ads June 18, 2001. The ads, which ran for about three weeks, criticized Davis' handling of the statewide energy crisis and ended with the phrase "Grayouts from Gray Davis."

The alliance is headed by Scott Reed, a Washington, D.C.-based Republican strategist, and the commercials were produced by consultants tied to the Bush administration. Reed did not return calls seeking comment.

Davis and other Democrats contend the contributors include electric power generators he has accused of overcharging the state for electricity.

Seeking their identities, Davis sued, claiming the group violated the state's Political Reform Act by failing to register with the California secretary of state. He argued that any group advocating for or against candidates must register and disclose their financial backers.

The Davis campaign said it would appeal the decision to the California Supreme Court on grounds the ads in question were urging viewers to vote against Davis, even though they did not actually say so.

"Shadowy groups cannot come in and affect an election without complying with the rules of the state of California," said Davis spokesman Roger Salazar. "Anybody who takes a look at the ads objectively understands what the ads are supposed to do: impact Governor Gray Davis' re-election chances."

Update

Group criticizing California Gov. Davis doesn't have to list backers
State Supreme Court declines to review case involving American Taxpayers Alliance.  12.12.02

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Group critical of California governor must identify financial backers
Attorney says judge’s ruling ‘strikes at the heart’ of citizens’ First Amendment right to praise or criticize public officials.  09.18.01