UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

NO ON E, ET AL.,
Plaintiffs,
v.
DAVID CHIU, ET AL.,
Defendants.

Case No. 3:22-cv-02785-CRB

PLAINTIFFS’ MERITS BRIEF IN SUPPORT OF PERMANENT INJUNCTIVE RELIEF

I. UNDER BONTA, THE CITY’S ASSERTED INTERESTS MUST BE LEGITIMATE AND MAY NOT CONFLICT WITH HIGHER LAW.

To satisfy even "exacting scrutiny," the City must demonstrate a "substantial relation" to a "sufficiently important" or legitimate state interest. See Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383 (2021). An interest is not legitimate if its execution requires the City to violate the superior mandates of the San Francisco Municipal Charter or the California Constitution.

A. The Charter and Referendum Authority.
We assume without deciding that the city charter does not itself protect political speech, and that the referendum was duly enacted. However, the mere fact of a referendum’s passage does not insulate it from constitutional review; a majority of the electorate cannot vote to extinguish the fundamental liberties of the minority. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

B. The Ordinance Conflicts with the California Constitution.
The secondary-donor mandate creates an irreconcilable conflict with the Privacy clause, the Liberty of Speech clause, and the Equal Protection clause, which provide protections broader and more robust than the federal First Amendment.

1. Inalienable Right to Privacy (Art. I, § 1): In California, the Inalienable Right to Privacy (Art. I, § 1) provides a constitutional floor that is independent of, and broader than, the federal First Amendment:
   White v. Davis, 13 Cal. 3d 757 (1975); Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1 (1994); Digital Music News LLC v. Superior Court, 226 Cal. App. 4th 216 (2014).
2. Liberty of Speech (Art. I, § 2): In California, the Liberty of Speech clause (Art. I, § 2) provides a constitutional floor that is independent of, and broader than, the federal First Amendment:
   Wilson v. Superior Court, 13 Cal. 3d 652 (1975); Schuster v. Municipal Court, 109 Cal. App. 3d 887 (1980); Canon v. Justice Court, 61 Cal. 2d 446 (1964).
3. Equal Protection (Art. I, § 7): In California, the Equal Protection clause (Art. I, § 7) prevents the state from singling out political speakers for discriminatory identification requirements:
   Ghafari v. Municipal Court, 87 Cal. App. 3d 255 (1978). Because Ghafari protected speech on these grounds, its holding may have a res judicata or collateral estoppel effect, barring the City from reviving similar discriminatory identification requirements.

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II. MANDATORY "POINT-OF-SPEECH" IDENTIFICATION IS UNCONSTITUTIONAL UNDER ALL RELEVANT AUTHORITIES.

A. The Ninth Circuit String Cite.
The Ninth Circuit has repeatedly protected the right to anonymous speech and struck down "point-of-speech" identification requirements under a rigorous standard of review. :
ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004); Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (en banc); In re Anonymous Online Speakers, 661 F.3d 1168 (9th Cir. 2011); Rosen v. Port of Portland, 641 F.2d 1243 (9th Cir. 1981).

B. Landmark Jehovah's Witnesses Precedents.
The following landmark cases involving the Jehovah’s Witnesses established that the state cannot compel individuals to serve as mouthpieces for government messages or to surrender their anonymity as a condition of speaking:
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Watchtower Bible & Tract Soc. of NY v. Village of Stratton, 536 U.S. 150 (2002); Wooley v. Maynard, 430 U.S. 705 (1977); Cantwell v. Connecticut, 310 U.S. 296 (1940); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Martin v. City of Struthers, 319 U.S. 141 (1943); Schneider v. State, 308 U.S. 147 (1939); Lovell v. City of Griffin, 303 U.S. 444 (1938).

C. Civil Rights Era Protection of Anonymity.
The Civil Rights movement established that compelled identification and donor disclosure are tools of state-sponsored harassment that unconstitutionally chill the rights to speech and association:
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); Bates v. City of Little Rock, 361 U.S. 516 (1960); Talley v. California, 362 U.S. 60 (1960); Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963); Shelton v. Tucker, 364 U.S. 479 (1960).

D. Discovery Disputes and Digital Anonymity (Paul Alan Levy).
The work of Paul Alan Levy and Public Citizen has been significant in the area of discovery disputes:
Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Highfields Cap. Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005); Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009); Mobilisa, Inc. v. Doe, 170 P.3d 282 (Ariz. Ct. App. 2007); Thomson v. Doe, 356 P.3d 727 (Wash. Ct. App. 2015); Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (2008); Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009); Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. Ct. 2011); Mortgage Specialists, Inc. v. Implode-Explode Network, 160 N.H. 227 (2010).

E. Express Advocacy and Electioneering (James Bopp).
The work of James Bopp has been significant in the area of express advocacy:
FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007); Citizens United v. FEC, 558 U.S. 310 (2010); McCutcheon v. FEC, 572 U.S. 185 (2014); Republican Party of Minn. v. White, 536 U.S. 765 (2002); Christian Legal Soc'y v. Martinez, 561 U.S. 661 (2010); Reed v. Town of Gilbert, 576 U.S. 155 (2015); Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021); N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008); Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007); Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012).

F. Election Law and First Amendment Litigation (Robbin Stewart).
Robbin Stewart also works in the area of election law and First Amendment rights:
Majors v. Abell, 317 F.3d 719 (7th Cir. 2003); Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) (Amicus); State ex rel. Coker-Garcia v. Blunt, 849 S.W.2d 81 (Mo. Ct. App. 1993); Stewart v. Taylor, 953 F. Supp. 1047 (S.D. Ind. 1997); Williamson v. Marion Cnty. Election Bd., 734 N.E.2d 1141 (Ind. Ct. App. 2000); Rebecca Majors v. Ind. Election Comm’n, 733 N.E.2d 1032 (Ind. Ct. App. 2000); Stewart v. Profitt, 754 N.E.2d 1059 (Ind. Ct. App. 2001); Stewart v. White, 754 N.E.2d 1059 (Ind. Ct. App. 2001); Palmer v. Marion Cnty. Election Bd., No. 49A04-1002-PL-81 (Ind. Ct. App. Aug. 12, 2010).

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III. FORCED DISCLAIMERS CONSTITUTE HARMFUL CENSORSHIP AND BAD PUBLIC POLICY.

Censorship via "transparency" is bad policy. By "drowning out" the speaker’s own message with state-mandated text, the City effectively silences those without the resources to purchase additional ad space to circumvent the clutter. This "mobile billboard" effect turns private expressive property into a government notice board, violating the core principle that the state may not "prescribe what shall be orthodox in politics" or force a speaker to be a mouthpiece for the government's transparency agenda.

1. Physical Appropriation of Speech: San Francisco’s disclaimer requirements can consume up to 40% of the visual space on an advertisement. This constitutes a physical appropriation of the medium, rendering communication visually unviable and functionally incoherent.
2. The "Drowning Out" Effect: As recognized by the Bumatay 9 dissent in No on E v. Chiu, 92 F.4th 1146 (9th Cir. 2024), these intrusive labels obstruct rather than inform. When the state's "badge" is more prominent than the message, the state has moved into active censorship.
3. Redundancy of the Burden: Because the City maintains the TRACER database for disclosure, the "point-of-speech" disclaimer is a redundant and unconstitutional burden.

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Proactive Follow-up: Shall we now finalize the Conclusion for the merits brief, emphasizing that the Bumatay 9 dissent is the only opinion th