Reset A A Font size: Print

Court of Appeal, Fourth District, Division 3, California.

Linda Lee CALLIGAN, Petitioner, v. SUPERIOR COURT of the State of California for the County of Orange, Honorable Judith Ryan, Judge Presiding, Respondent; Brad GATES;  and A.E. Olson, Registrar of Voters of the County of Orange, Real Parties in Interest.


Decided: September 18, 1986

Yacobozzi and Sterling, William Yacobozzi, Jr., Newport Beach, and Leland D. Sterling, for petitioner. No appearance for respondent. Darryl R. Wold, Newport Beach, Beam DiCaro, D'Anthony & Brobeck, and John R. DiCaro, Santa Ana, for real party in interest Brad Gates. Adrian Kuyper, County Counsel, and David G. Epstein, Deputy County Counsel, Santa Ana, for real party in interest A.E. Olson.


We are asked to determine whether speech in the form of a candidate's statement may be restrained in the interest of providing accurate information to prospective voters in a nonpartisan county election.

Pursuant to Elections Code section 10012,1 the Orange County Registrar prepares a Voter Information Pamphlet which is sent with a sample ballot to each registered voter in Orange County.   Each candidate for nonpartisan office may submit a 200 word statement for inclusion in the pamphlet.   The candidate is billed their pro-rata share of the cost of printing;  however, the candidate does not pay any cost for mailing the pamphlets.   The county pays the entire mailing cost for the pamphlet and the sample ballot package.

Petitioner (“Calligan”) and Real Party Gates (“Gates”) were candidates for the office of Orange County Sheriff, a nonpartisan position.   Calligan submitted her candidate statement to the Orange County Registrar of Voters for inclusion in the Voter Information Pamphlet.   Gates filed a petition for a writ of mandate and a complaint for an injunction pursuant to section 10013.5.2  Gates alleged portions of Calligan's statement were “false and misleading” and should be deleted from her pamphlet statement.3

The superior court found section 10013.5 to be constitutional, and that some of the challenged statements were false and misleading.   The court determined the statements, “[h]e's been convicted of a Federal crime and fined $100,000 which taxpayers paid.   He owned a bar, a state law violation, and covered up a Felony Drunk Driving arrest․  He's charged the taxpayers $5,100,000 for low security tents to house violent criminals․” were both false and misleading.   It further found Gates had not met his burden of proving the statement “ ․ we've more lawsuits than any California jail” was false and misleading.

Calligan then sought a writ of prohibition in this court on April 3, 1986.   The Registrar, in his response, indicated that April 3 was the last day on which changes could be made to the contents of the pamphlet without risking delays in printing and mailing.   He indicated printing of the pamphlets must begin no later than April 7 to insure timely delivery.

In light of severe time restrictions, we issued a stay order immediately and on April 7, we directed the stay remain in effect and issued an alternative writ of mandate.   We recognized our action would result in the distribution to the public of the unexpurgated version of Calligan's statement.   Unable to fully brief and study the issue presented, our action was intended to protect whatever First Amendment rights were involved.   A hearing to show cause was calendared for June 18, 1986, to allow the parties an opportunity to be fully heard in this court on a matter of constitutional impact.

On April 9, Gates petitioned the California Supreme Court for an extraordinary writ of mandate directing us to vacate our stay order.   On April 10, the Supreme Court vacated our stay order and transferred the proceeding to us for consideration of the cause on the merits.   As a result, the Registrar began printing the expurgated version instead of the original version.   We denied Calligan's subsequent petition for advancement of the hearing date for the same reason we set the hearing date in the first place.   The Supreme Court also denied her petition for an expedited hearing.

Calligan then sought relief from the United States District Court, Central District of California, under Title 42, U.S.C. section 1983.   The court declined to grant Calligan her requested preliminary injunction, but did retain jurisdiction in order to act if the state courts did not.

The issues are joined.   They are of constitutional magnitude and great importance.   Calligan argues section 10013.5 effects a prior restraint, and is therefore unconstitutional.   Gates counters the state's interest in providing accurate information to potential voters is so significant it may restrain false and misleading statements in candidate statement pamphlets which it produces and partially subsidizes.

 Calligan's right as a candidate to openly debate and frame the issues concerning the election is certainly protected by the First Amendment.   She has the right, if not the duty, to vigorously discuss issues and strenuously advocate her election.  (Buckley v. Valeo (1976) 424 U.S. 1, 52–53, 96 S.Ct. 612, 651, 46 L.Ed.2d 659.)  “[S]peech concerning public affairs is more than self-expression;  it is the essence of self-government.   The First and Fourteenth Amendments embody our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’  (New York Times Co. v. Sullivan [ (1964) 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686.) ]”   (Garrison v. Louisiana (1964) 379 U.S. 64, 74–75, 85 S.Ct. 209, 215–216, 13 L.Ed.2d 125.)

Gates is also correct that in order to advance a significant and legitimate state interest certain speech may be restrained.  “[I]t has been clear since this Court's earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest.  [Citation.]”  (City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772.)   In addressing this issue, Justice Rehnquist noted in his concurring opinion in Smith v. Daily Mail Publication Co. (1979) 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399, that protecting freedom of speech “has not meant that the public interest in free speech and free press has always prevailed over competing interests of the public.  ‘Freedom of speech thus does not comprehend the right to speak on any subject at any time,’ [Citation], ․  While we have shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented.  [Citations.]”  (Id., at pp 106–107, 99 S.Ct. at 2672–2673 (conc. opn. of Rehnquist, J.).)

In weighing the conflicting interests presented, we find Gates has demonstrated a significant state interest in providing the electorate with accurate information concerning candidates in less publicized nonpartisan elections.  “Preserving the integrity of the electoral process, preventing corruption, and ‘sustain[ing] the active alert responsibility of the individual citizen in a democracy for the wise conduct of government’ are interests of the highest importance.  [Citations.]”  (Fn. omitted.)  (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 788–789 [98 S.Ct. 1407, 1422, 55 L.Ed.2d 707].)

We also observe Calligan's right to freely debate the issues is virtually without limitation when the debate is truthful.   However, such discourse is subject to limitation when a candidate's statements are false.   Though innocent or negligent falsehoods are constitutionally protected speech under the New York Times standard, “[t]he use of calculated falsehood, however, would put a different cast on the constitutional question.   Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity․  That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution.   For the use of the known lie as a tool is at once at odds with the premises of democratic government․  Calculated falsehood falls into that class of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality․’  [Citation.]   Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.”  (Garrison v. Louisiana (1964) 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125.)

Further, Calligan's argument that New York Times v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 guarantees her right to publish the deleted statements in a privately financed medium, while correct, misses the mark.   The question is, in utilizing a medium which is at least partially subsidized 4 and designed to neither promote nor restrict debate, but to instead give honest, reliable factual information to the voters, is restraint constitutionally proscribed?   We think not.

Section 10013.5, by permitting restraint of innocent falsehoods, extends the reach of New York Times v. Sullivan.   New York Times and its progeny require that a party know of or recklessly disregard a statement's likely untruth.   This rule reflects the Supreme Court's concern that allowing liability for an honest but untrue utterance would chill the robust public debate which the First Amendment protects.   Thus, New York Times protects certain falsehoods because the state interest in restricting them is not compelling enough to warrant the restraint.  Section 10013.5 simply addresses different constitutional interests.   Rather than freedom of the press, we have a candidate's freedom to use a special state forum to utter falsehoods.   Rather than society's interest in protecting individuals from defamation, we have the state's interest in protecting the integrity of the electoral process.

We conclude that section 10013.5 does no violence to the New York Times rule since each addresses a different medium of communication.   Each medium of communication and each forum within a medium must have its own rules which reflect the “differing natures, values, abuses and dangers” of the means or forum.  (Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490, 500–501, 101 S.Ct. 2882, 2888–2889, 69 L.Ed.2d 800;  see Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 557–558, 95 S.Ct. 1239, 1245–1246, 43 L.Ed.2d 448.)   While New York Times accurately reflects the rules and balance required to protect open debate and freedom of the private press, section 10013.5 accurately describes the rules and balance required to protect the state's interest in protecting the electorate and the electoral process.

Other courts, confronted with a similar quandary over the proper balance between a candidate's right to deceive and the state's interest in protecting the integrity of the electoral process, have had no difficulty finding that the state's interest must prevail.   In Tomei v. Finley (N.D.Ill.1981) 512 F.Supp. 695, the court upheld prior restraint of a candidate's right to distribute deceptive campaign materials.   The court found that prohibiting a democratic candidate's use of the acronym “REP” (for “Representation for Every Person Party”) was a permissible restraint in light of the state's interest in protecting the integrity of the electoral process.   Similarly, the court in Vanasco v. Schwartz (E.D.N.Y.1975) 401 F.Supp. 87, while invalidating a New York statute prohibiting “misrepresentations” in campaign literature, stated that “calculated falsehoods are of such slight social value that no matter what the context in which they are made, they are not constitutionally protected.”   (Id., at p. 93.)   Even these two cases, however, dealt with privately authorized publications, not a state sponsored and subsidized pamphlet designed to protect the electorate.   The presence of an additional state justification for the restraint here merely shows the heightened justification for striking a balance in the state's favor.

Similarly, the Supreme Court has held the governmental interests in ensuring that the electroate is fully informed and in preventing the corruption of the political process may, in limited instances, justify narrowly tailored laws necessary to further those interests, even though such legislation may have an incidental impact upon certain First Amendment freedoms.  (Buckley v. Valeo, supra, 424 U.S. 1, 96 S.Ct. 612.)   In Buckley, the court upheld a federal statute limiting the size of political contributions and requiring disclosure of campaign contribution sources.   The court rejected the argument that these limitations violated the First Amendment by reducing the quantity of political expression and chilling the freedom of political association.

Finally, Calligan points to two California cases which she argues support her First Amendment right against state imposed censorship of her pamphlet statement.  Wilson v. Superior Court (1975) 13 Cal.3d 652, 119 Cal.Rptr. 468, 532 P.2d 116 involved a candidate for county office who, at his own expense, distributed a self-styled Newsletter.   It included reprints of newspaper stories many years old concerning the prior criminal prosecution of his opponent, the incumbent.   The “Newsletter” did not reveal the news stories were over six years old and, further, failed to point out the incumbent was, in fact, acquitted of the charges in question.   The incumbent brought a libel action and obtained a temporary restraining order enjoining distribution of the material in question.   A preliminary injunction was granted and only updated versions of the Newsletter, which disclosed the fact of acquittal, were permitted and then only if newspaper reprints concerning the incumbent be presented in a “fair and balanced manner.”   The Supreme Court issued a writ of prohibition which is the source of Calligan's claim of First Amendment protection.   Particularly she quotes, “however, we have not discovered any case upholding the power of a court to restrain publication of a statement regarding the official conduct of a public officer on the ground that the statement was not wholly true or was presented in a deceptive manner.   The judiciary has been ever mindful of Thomas Jefferson's aphorism that ‘error of opinion may be tolerated when reason is free to combat it.’ ”  (Wilson v. Superior Court, supra, 13 Cal.3d at p. 662, 119 Cal.Rptr. 468, 532 P.2d 116.)   Justice Mosk's invocation of First Amendment freedoms, however, was for a candidate who at his own expense published and distributed his literature.   We find Wilson does not apply to a state subsidized distribution of election material.

However, in Loza v. Panish (1980) 102 Cal.App.3d 821, 162 Cal.Rptr. 596 the court relied upon Wilson to hold former Elections Code section 10012 unconstitutional.5  While we recognize the result in Loza to be correct, we reject part of the reasoning of the majority opinion.   The Loza court failed to distinguish a state subsidized candidate's statement from one sent at private expense.   It merely adopted the Wilson court's prohibition on all restraints in the political arena.   As pointed out herein, we find a different rationale to be appropriate when a significant state interest is involved.   Former section 10012 was unconstitutional, not because all political speech is sacrosanct and immune from any legitimate prior restraint, but because former section 10012 prohibited constitutionally protected speech in an overbroad manner, not a manner narrowly and necessarily related to a compelling state interest.  (See Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at p. 559, 95 S.Ct. at 1246.)   Further, investing the clerk with authority to “reject” the candidate's statements did not provide adequate procedural safeguards to reduce the risk of constitutional protected speech being restrained.  (A defect cured by the current Elections Code section 10013.5 as discussed infra.)

We find support for our views in Justice Beach's concurring opinion in Loza.  “The matter at bench is not one of speaking or distributing literature in streets and parks or other public places immemorially held in trust for the use of the public for such purposes.  (Hague v. C.I.O., supra, 307 U.S. 496, 515 [59 S.Ct. 954, 963, 83 L.Ed. 1423, 83 L.Ed. 1423, 1436].)   The issue here is whether a local government may grant a new privilege to use a particular means of communication and at the same time condition that privileged use.   To pose the question is almost to answer it.   There are cases too numerous to list where the United States Supreme Court has upheld restrictions not only upon time, place and manner of speech and writing, but upon content as well.   Limitations and restriction have been upheld even though the effect thereof is to impose prior restraint.   Merely because the case may involve expression through speech or literature does not mean that it is ‘hands off’ if there appears any restriction thereon.   The reports abound in cases where other public interests justify limitations on the place, manner, time and content of speech.”  (Loza v. Panish, supra, 102 Cal.App.3d at pp. 828–829, 162 Cal.Rptr. 596 (conc. opn. of Beach, J.).)

We find that section 10013.5 is necessary to protect the state's interest.   Permitting publication of falsehoods in the pamphlet would, by definition, defeat the state's interest in promoting a rational and informed electorate.

Calligan argues no restraint is permissible in a public forum such as the candidate's statement.   She is correct that restraint is not tolerated when applied to speech in what is traditionally viewed as a public forum.   However, our United States Supreme Court has created various types of public forums with attendant rules and restrictions.  (Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567.)  Cornelius defined traditional public forums as “those places which ‘by long tradition or by government fiat have been devoted to assembly and public debate.’   [Citation.]  Public streets and parks fall into this category.”  (Id., 473 U.S. at ––––, 105 S.Ct. at 3449, at 87 L.Ed.2d 580.)

However, a limited public forum, “may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects․  [¶] ․ The government does not create a [limited] public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse.  [Citation.]  Accordingly, the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.”  (Ibid.)  The Cornelius majority held the determinative factor is the government's intent in creating the forum.   If the government opens a non-traditional arena to facilitate open public debate or public expressive activity on a limited topic or for a limited time-frame, it creates a limited public forum.   If, however, the government opens an arena for a particular information purpose, restricting access to a select group without permitting open discourse, it creates a nonpublic forum.

Thus, the Cornelius majority found a federally sponsored charity drive to be a nonpublic forum, permitting exclusion of certain charities from the drive.   The court reasoned since the government created the forum envisioning only restricted access, the forum was nonpublic.   The court found the lack of any evidence of an intention to provide for general public use supported the finding of a nonpublic forum.   The court drew comparisons to Perry Education Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 and Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770.   In Perry, the court found a school district's internal mailing system to be a nonpublic forum because school board policy never permitted general access to the system.   In Lehman, the court found that advertising spaces on city buses were nonpublic fora because the city had for 26 years controlled the subject matter of the ads.

The dissent in Cornelius found nonpublic forums to consist “of property that is not compatible with general expressive activity;”  and noted “the line between limited public forums and nonpublic forums ‘may blur at the edges,’ and is really more in the nature of a continuum than a definite demarcation.   [Citation.]”  (Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. at p. ––––, 105 S.Ct. at p. 3458, 87 L.Ed.2d at p. 591.)   In a public forum, any rules controlling access to the forum must be viewpoint neutral and narrowly drawn to meet a compelling governmental interest.  (See Widmar v. Vincent (1981) 454 U.S. 263, 269–270, 102 S.Ct. 269, 274, 70 L.Ed.2d 440.)   In contrast, rules limiting access to a nonpublic forum need only be viewpoint neutral and reasonably related to the forum's purpose.  (Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. at p. ––––, 105 S.Ct. at p. 3451, 87 L.Ed.2d at p. 582.)

Based on the Cornelius analysis, we find the voter pamphlet before us is a nonpublic forum.  Elections Code section 10013.5, and its predecessor, make it clear the Legislature created the pamphlet for a special purpose with very limited access in mind.   First, access as to speaker is limited to certain nonpartisan electoral candidates.   Second, access as to subject is limited to honest electoral statements.   Unlike the typical limited forum, the pamphlet provides the general public with no potential means for public communication or expressive activity.   As the court states in Cornelius, “where the principal function of the property would be disrupted by expressive activity, the Court is particularly reluctant to hold that the Government intended to designate a public forum.”  (Id., 473 U.S. at ––––, 105 S.Ct. at 3450, at 87 L.Ed.2d 581.)   Further, the court found “an examination of the nature of the government property involved strengthens the conclusion that the [charity fundraiser] is a nonpublic forum.”  (Id., 473 U.S. at ––––, 105 S.Ct. at 3451, at 87 L.Ed.2d 582.)   Similarly, an analysis of the government property before us, the pamphlet, strengthens the conclusion that it is a nonpublic forum.   Its goal, efficient dissemination of reliable information to the electorate, would be diminished, if not destroyed, if open access to all speakers or all subjects were permitted.

Since the pamphlet is a nonpublic forum, the control over access to it “can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.  [Citation.]  Although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum [citation], or if he is not a member of the class of speakers for whose especial benefit the forum was created [citation], the Government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”  (Id., 473 U.S. at ––––, 105 S.Ct. at 3451, at 87 L.Ed.2d 582.)   Further, “[t]he Government's decision to restrict access to a nonpublic forum need only be reasonable;  it need not be the most reasonable or the only reasonable limitation.”  (Id., 473 U.S. at ––––, 105 S.Ct. at 3452, at 87 L.Ed.2d 584.)   Thus, California may permit only certain speakers (i.e., nonpartisan candidates) to use the pamphlet since the restriction is reasonably related to the goal of promoting coverage of lesser-known contests.   Similarly, restricting the subject matter to truthful statements is permissible.   The truth restriction is reasonably related to the goal of providing the electorate with reliable information.   The truth restriction, while content based, is viewpoint neutral.   It is the falseness of the statement, not the particular viewpoint, which causes exclusion.   False speech is simply not an “includible subject” within the pamphlet's limited purview.

We next address the question of whether section 10013.5 provides adequate procedural safeguards to reduce the risk of the statute being used to restrain constitutionally protected speech.   We find that section 10013.5, unlike its predecessor, contains the necessary constitutional safeguards.

“[A] system of prior restraint ‘avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.’  [Citations].”  (Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. 546, 559, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448.)  “[A] system of prior restraint runs afoul of the First Amendment if it lacks certain safeguards:  First, the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor.   Second, any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo.   Third, a prompt final judicial determination must be assured.”  (Italics omitted.)   (Id., at p. 560, 95 S.Ct. at 1247.)

Section 10013.5 meets the three requirements reaffirmed in Southeastern Promotions.   First, section 10013.5 requires that the censor (either a voter or a clerk) provide clear and convincing proof to the superior court that the statement is false.   Second, no prior nonjudicial restraint exists, since the statement is included in the pamphlet unless the superior court either grants a writ of mandate or issues an injunction.   Third, section 10013.5, by definition, requires a prompt judicial determination since the primary determination is judicial.

 Having determined that section 10013.5 passes federal muster, we must determine whether our state Constitution prohibits the prior restraint.   We find that it does not.

Article I, section 2, subdivision (a) of the state Constitution provides:  “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.   A law may not restrain or abridge liberty of speech or press.”   As our state Supreme Court has noted, this provision is more protective and definitive than the federal First Amendment.  (Wilson v. Superior Court, supra, 13 Cal.3d at p. 658, 119 Cal.Rptr. 468, 532 P.2d 116.)   The court in Wilson stated that “[t]he concept that a statement on a public issue may be suppressed because it is believed by a court to be untrue is entirely inconsistent with constitutional guarantees and raises the spectre of censorship in a most pernicious form.”   (Id., at p. 659, 119 Cal.Rptr. 468, 532 P.2d 116.)

However, we do not agree that our state Constitution compels us to invalidate section 10013.5.  Wilson, having been decided on both state and federal grounds, does not stand for the proposition that our Constitution precludes all prior restraints.   To the contrary, the state Supreme Court clarified the scope of our state freedom of speech, stating “[b]y no means do we imply that those who wish to disseminate ideas have free rein.”  (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910, 153 Cal.Rptr. 592 P.2d 341.)   We also note that the court in Wilson was addressing a different issue than the one before us—an issue more inviting to broad statements like the above-quoted language.   Had the Wilson court meant to interpret our state Constitution as a total embargo on prior restraint, it could have done so.   Absent such precedent, we see no reason to conclude that our state Constitution prohibits the valid restraint which this case presents.

 Unlike the prohibition against false speech, section 10013.5's restraint of speech which is “misleading or inconsistent with [Elections code section 10000 et seq]” does create an unconstitutional restraint on free speech.

The prohibition on “inconsistent” statements is void for vagueness.   To pass constitutional muster, a statute restricting speech must inform society in clear terms what speech it prohibits.  (Hynes v. Mayor and Council of Borough of Oradell (1976) 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243.)   A prohibition of “inconsistent” statements does not provide any indication of what speech is being circumscribed.

Similarly, a prohibition on “misleading” speech is too vague to satisfy constitutional requirements.   A statute which is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.  [Citation.]”  (Cramp v. Board of Pub. Inst., Orange County, Fla. (1961) 368 U.S. 278, 287, 82 S.Ct. 275, 280, 7 L.Ed.2d 285.)   The term “misleading” is subject to as many different interpretations as there are people.   Almost any statement is misleading if given a sufficiently mannered reading.

We also find both prohibitions to be unconstitutionally overbroad.  (See Vanasco v. Schwartz, supra, 401 F.Supp. 87.)  “An overbroad statute might serve to chill protected speech.”  (Bates v. State Bar of Arizona (1977) 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810.)   To be permissible under the First Amendment, a prior restraint may restrict only that speech necessary to protect the compelling state interest.   While the restriction on falsehoods protects the electorate at a relatively minimal First Amendment cost, a restriction on misleading speech exacts a much greater price for little, if any, additional benefit to the electorate.   The open and robust political discussion which the First Amendment is meant to foster would be endangered if a candidate needed to avoid not only the loose language of which political promises are made, but also the clever criticism of a rival which turns one politician's “budget deficit” into another's “disastrous fiscal bankruptcy.”   While we can certainly envision situations where a cleverly worded misstatement could do as much damage to the integrity of the electorate as the innocent falsehood, “the use of the overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted.”  (Bates v. State Bar of Arizona, supra, 433 U.S. at p. 380, 97 S.Ct. at 2707.)   We conclude the balance which compels us to endorse the restraint on falsehoods is not met in an attempt to restrict misleading or inconsistent speech.

 We now turn to whether the trial court erred in finding Gates had presented clear and convincing evidence that the phrases deleted from Calligan's statement were false.   The superior court found the phrases to be both “false and misleading.”   Because we have determined that the misleading standard is unconstitutional, we must reverse the court's order unless Gates met his burden by clear and convincing evidence that each phrase was false.

This evidentiary determination is nothing more than a familiar substantial evidence question.   An appellate court must uphold the judgment of the lower court when substantial evidence exists supporting the judgment.  (E.g., Public Employees Assn. v. Board of Supervisors (1985) 167 Cal.App.3d 797, 804, 213 Cal.Rptr. 491.)   Our review is limited to a determination of whether any substantial evidence exists supporting the court's decision.  (E.g., Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503, 198 Cal.Rptr. 551, 674 P.2d 253.)   We must view the evidence in a light most favorable to the judgment, giving Gates' position every reasonable inference.   (E.g., Ziswasser v. Cole & Cowan, Inc. (1985) 164 Cal.App.3d 417, 422–423, 210 Cal.Rptr. 428.)

With these principles in mind, we conclude substantial evidence supports the court's determination the deleted material was false.   We find substantial evidence supporting the courts finding that the sentence, “He's been convicted of a Federal crime and fined $100,000 which taxpayers paid.”, was false.   This sentence refers to an order of contempt in the U.S. District Court case of Stewart v. Gates issued on March 20, 1985.   The County Counsel of Orange, who represented Gates in the Stewart case, submitted a declaration which flatly states the contempt order was not a federal crime, but a civil penalty.   The County Counsel cites the District Court's failure to comply with the requirements of Federal Rule of Criminal Procedure rule 42, which sets out the procedure for initiating criminal contempt proceedings.   Further, the County Counsel stated that the fine was levied against all the defendants, not just Gates.   In addition, the fine levied was only $75,000, not $100,000;  Calligan added the award for attorney's fees ($35,563) to obtain her $100,000 figure.   Although Calligan presented some contrary evidence, the totality of the evidence provided a substantial basis upon which the court could determine that the sentence was false.

Substantial evidence exists supporting the court's determination that the phrase, “[h]e owned a bar, a state law violation ․”, was false.   Gates submitted a declaration explaining that in 1975, he was a limited partner in a partnership that applied for a liquor license from the California Department of Alcoholic Beverage Control.   Before the partnership obtained the license, Gates sold his interest back to the partnership.   Although Calligan submitted a declaration from a citizen who stated she was served alcohol at the bar while Gates owned his interest, two partnership members submitted declarations refuting Calligan's evidence, stating Gates sold his interest back before the partnership obtained its license, and even before construction on the building was complete.

Substantial evidence exists to support the court's finding that the phrase, “[h]e ․ covered-up a Felony Drunk Driving arrest”, was false.   The natural reading of this statement is that Gates was arrested for drunk driving.   Gates has never been arrested for drunk driving.   Calligan states that she meant the statement to refer to a July 1977 incident in which two Orange County Deputy Sheriffs were involved in a auto accident allegedly involving drunk driving.   When the officers were not prosecuted, a private attorney charged that officers from the Sheriff's Department were involved in a coverup.   Those charges were referred to the Orange County District Attorney who, following an investigation, concluded that there was no evidence to show any wrongdoing by the Sheriff's Department.

The phrase, “[h]e's charged the taxpayers $5,100,000 for low security tents to house violent criminals ․”, was found to be false.   The evidence supporting the court's determination showed the total cost of the tents was approximately $717,000, as shown by a declaration of the Orange County Auditor-Controller.   Further, Gates provided substantial evidence showing no violent criminals were housed at the tent facilities.   Gates provided declarations from Sheriff Department employees detailing the screening procedures used to prevent the transfer of a violent criminal to the tent facility.

We strike as unconstitutionally vague and overbroad that portion of section 10013.5 prohibiting statements which are “misleading, or inconsistent with the requirements of this chapter.”   We find the balance of the statute constitutional.   We further affirm the lower court's order directing the Registrar to delete the false portion of Calligan's statement.

The petition for a writ of prohibition is denied.

The dissent, while using much more space than the simple “X's” and “O's” utilized by Ara Parseghian in diagraming his misdirection play for Notre Dame, attempts to accomplish the same purpose.

By ignoring the finding of the trial judge that Calligan's statements were false and by deeming them factual error,1 the dissent creates a convenient springboard to interject the “access to forum” versus “content based censorship of political speech” argument.   Wandering aimlessly through the broken field of First Amendment “access to forum” cases, it concludes, without authority, this is a case of blatant censorship.   The dissent attempts to support its conclusion by some additional linguistic footwork relating the case at bench to a truthful political advertising problem.   This is achieved by noting the similarity between municipal buses, military bases, prisoners, school teachers, and federal employees, all of which are strikingly similar to the case at bench.   This argument suggests once forum access is achieved, unlimited content of speech is mandated.   Our attention having been diverted from “access to forum” to “political speech censorship” makes the “cutback over right tackle” appear to be a “sweep around the left end.”

The truth of the matter, to coin a phrase, is that section 10013.5 of the Elections Code protects a fundamental governmental interest—the elective process.

The voter pamphlet provides the candidate with a government-approved forum to disseminate truthful information to the electorate.   The integrity of the elective process need not be contaminated by falsehoods contained in a candidate's statement.   Access to the forum may be restricted as being incompatible with the forum provided.   This presupposes, as was the case here, that due process is afforded in making the determination the candidate's statement contained falsehoods.

I unabashedly subscribe to the theory political speech need not bear the “Prime Beef” stamp of government approval.   I do not share the dissent's fears a virus has been created that will spread to other vulnerable hosts and lead to rampant governmental censorship.

I dissent.   The issue starkly before us is whether the state may constitutionally regulate, by prior restraint and in the name of “truth,” the content of political speech simply because the government itself provides the forum.   I would hold not.


Since, as will be explained below, a defense of the constitutionality of section 10013.5 of the Elections Code necessarily hinges on the existence of some very special governmental interest in the accuracy of the voter pamphlet, it is useful to examine that subject at the outset.   It must be immediately conceded that the provision of the pamphlet as a candidate forum and section 10013.5 do themselves demonstrate an intention to foster the distribution of accurate information to the electorate.   But this observation advances us very little.   Well-intentioned unconstitutional invasions of fundamental freedoms are nonetheless unconstitutional.

The addition of the candidates' statements to the pamphlet costs nothing or virtually nothing:  Printing expenses are prorated among the candidates, although an exception must be made for the occasional indigent.  (See Mackey v. Panish (1980) 106 Cal.App.3d 7, 164 Cal.Rptr. 771.)   The pamphlet also contains a sample ballot, which must be sent in any event;  and, we are told by county counsel, the candidates' material rarely, if ever, adds to the cost of postage.   Thus, the mailing is free to the candidates but at no additional expense to the public.

The pamphlet does carry an indicia of government sponsorship by its delivery in an envelope from the registrar of voters;  and its cover, at least in this particular case, prominently displays the logo of the County of Orange.   Somewhat balancing these appearances of governmental origin, however, immediately following the sample ballot and preceding the candidates' statements is a mild disclaimer in type slightly larger than that used in the candidates' statements.   It reads, “This pamphlet may not contain a complete list of candidates.   A complete list of candidates appears on the Sample Ballot.   Each candidate's statement in this pamphlet is volunteered by the candidate and is printed at the expense of the candidate unless otherwise determined by the governing body.”

Based on these unique features of the pamphlet, it is fair to conclude the state has a legitimate interest, apart from truth for its own sake, in maintaining the integrity of its contents, as opposed to ordinary campaign literature of private origin.   Although the public financial stake is generally small, there is certain to be some cost, if only administrative, in most elections;  and there will be extraordinary situations in which the expense will rise above relatively de minimus levels.  (See, e.g., Dutcher v. Olson (1984) 153 Cal.App.3d 1189, 200 Cal.Rptr. 847.)   Nevertheless, the argument cannot be pushed too far.   It is highly dubious that public funding alone may ever justify government assumption of an editorial voice in the content of political speech beyond reasonable restrictions on time, place, and manner.  (See Buckley v. Valeo (1976) 424 U.S. 1, 93, fn. 126, 96 S.Ct. 612, 670, fn. 126, 46 L.Ed.2d 659.)

To be sure, the indicia of state sponsorship described above does create the possibility, as the sheriff argues, that some voters who fail to notice the disclaimer may assume the information contained in the pamphlet is government certified truth.   To the extent a particular voter may be aware of Elections Code section 10013.5, the statutory censorship system authorizing the superior court's action here, that danger, ironically, may be exacerbated.   Those ordinarily skeptical of political rhetoric might be less so, perhaps, when it is contained in a state sponsored publication subject to content regulation.

While I believe these arguments are naive in the extreme and border on an insult to the electorate, they do contain some marginal validity.   The taxpayer has a legitimate complaint when misstatements are made in a document produced at even slight public expense, perhaps.   But censorship of the Congressional Record should be commenced forthwith if a cost-benefit approach may be appropriately applied to restrain government promulgation of false political speech.

Also, I recognize there are probably some persons prepared to believe anything contained in an official publication.   But many opposing candidates produce flatly contradictory statements, each claiming superior qualifications and ability.   How could all of them be truthful?   Who would believe the state somehow endorses all of these palaverings?   Nevertheless, conceding a state interest, however weak and ill-conceived, is the statute constitutional?


Of course, it could also be argued the state has a constitutionally assertable independent interest in fostering truth in political speech apart from its role as publisher of the voter pamphlet.   That notion, however, is spurious.   The general rule is clear.   Ordinarily, government simply may not regulate the content of political speech no matter how benign the motives, no matter how flagrant the untruth:  “Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error.   Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision.  [Citation.]  This is true even though the utterance contains ‘half-truths' and ‘misinformation.’  [Citation.]  Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice.   [Citations.]  If judges are to be treated as ‘men of fortitude, able to thrive in a hardy climate,’ [citation] surely the same must be true of other government officials, such as elected city commissioners.   Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.  [¶]  If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate.   This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat[.] 596, which first crystallized a national awareness of the central meaning of the First Amendment.  [Citations.]”  (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 272–273, 84 S.Ct. 710, 721–722, 11 L.Ed.2d 686.)

As James Madison said in addressing Congress in opposition to the Sedition Act, “ ‘If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.’   4 Annals of Congress, p. 934 (1794).”  (Id., at p. 275, 84 S.Ct. at p. 723.)   In the years since, both the United States and California Supreme Courts have steadfastly maintained a policy prohibiting the prior restraint of most speech, particularly false political speech.   (Near v. Minnesota (1931) 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357;  Wilson v. Superior Court (1975) 13 Cal.3d 652, 119 Cal.Rptr. 468, 532 P.2d 116.)   Wilson made the point rather succinctly:  “The concept that a statement on a public issue may be suppressed because it is believed by a court to be untrue is entirely inconsistent with constitutional guarantees and raises the spectre of censorship in a most pernicious form.”  (Id., at p. 659, 119 Cal.Rptr. 468, 532 P.2d 116;  Loza v. Panish (1980) 102 Cal.App.3d 821, 825, 162 Cal.Rptr. 596.)

The rule is not absolute, of course;  a prior restraint may be imposed under extreme circumstances, such as “actual obstruction to [military] recruiting ․ or the publication of the sailing dates of transports or the number and location of troops.”  (Near v. Minnesota, supra, 283 U.S. at p. 716, 51 S.Ct. at 631.)  “[I]ncitements to acts of violence and the overthrow by force of orderly government” are other examples where prior restraints might be permitted.  (Ibid;  see also American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 211, 28 Cal.Rptr. 700, 379 P.2d 4.)   Mere lack of “truth” would hardly fit within these extreme exceptions, of course.

Nevertheless, the majority proposes to use an illegitimate balancing test to resolve the competing interests before us, as opposed to simply determining that untruthful political speech does not present a danger comparable to that of espionage.   For example, the majority cites Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 for the proposition that “ ‘While [the United States Supreme Court has] shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented.’  (Id., at p. 106, 99 S.Ct. at p. 2672 (conc. opn. of Rehnquist, J.).)”  (Maj. opn., at p. 390.)   Apart from the majority's reliance on the words of a solitary concurring justice in Smith, there are several things wrong with the argument.

The most obvious is that the First Amendment prevailed in Smith.   All justices voted to overturn a West Virginia criminal statute prohibiting the publication of the names of juvenile offenders.   Second, although Smith is not a case of prior restraint, at least in the classic sense, the court struck the statute despite the state's acknowledged legitimate interest in the confidentiality of juvenile proceedings:  “[E]ven when a state attempts to punish publication after the event it must nevertheless demonstrate that its punitive action was necessary to further the state interests asserted.   [Citation.]”  (Smith v. Daily Mail Publishing Co., supra, 442 U.S. at p. 102, 99 S.Ct. at 2670.)   Thus, Smith hardly supports the majority's conclusion here.

But even assuming a balancing test is appropriate in cases of prior restraint, the scale to be utilized in the process is that of Near v. Minnesota, supra, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357.   On the Near scale the court is not free to choose its preference among the competing interests, but always must select that fostered by the First Amendment unless one of the exceptional circumstances described in Near applies.


Although no one contended Calligan's accusations against the sheriff imperiled state security, is Near inapplicable nonetheless simply because the political message was to appear in a medium sponsored and disseminated by the state itself?   Is that distinction sufficiently strong to support a constitutional exception to the First Amendment's prohibition on censorship of political speech?   Concededly, the state may deny access to a forum for political purposes for appropriate and viewpoint neutral reasons (see, e.g., City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772), but may it condition access on a content basis?

The problem is relatively unique.   It has been aptly described as follows:  “[T]he Supreme Court has never reached the issue whether the government, by stepping into the position of editor, is relieved of its [F]irst [A]mendment obligation to provide access on a basis unrelated to speech content.   The Court had the opportunity to do so in Southeastern Promotions, Ltd. v. Conrad [ (1975) 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448].   Southeastern Promotions' application for the use of the Chattanooga Municipal Auditorium for the presentation of the rock musical Hair had been rejected by the auditorium's board of directors.   The opinion of the Court ignored the municipality's claim of a right to exercise editorial control over theatrical productions in its public theater, instead characterizing the board's action as an unconstitutional prior restraint lacking in the requisite procedural safeguards.   The court noted disapprovingly that ‘the board was empowered to determine whether the applicant should be granted permission ․ on the basis of its review of the content of the proposed production.’  [Id., at p. 554 [95 S.Ct. at p. 1244], emphasis added by the author.]”  (Comment, Access to State-Owned Communications Media—The Public Forum Doctrine (1979) 26 UCLA L.Rev. 1410, 1440.)

Political speech “has always rested on the highest rung of the hierarchy of First Amendment values:  ‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’  [Citation.]”  (Carey v. Brown (1980) 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263;  see also Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 759, 105 S.Ct. 2939, 2945–2946, 86 L.Ed.2d 593, 86 L.Ed.2d 593, 602–603.)

To ensure essential “breathing space” for political speech the United States Supreme Court has created a wall of protection with respect to defamation actions that is indeed formidable:  “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”   (New York Times Co. v. Sullivan, supra, 376 U.S. at pp. 279–280, 84 S.Ct. at pp. 725–726.)

Citing John Stuart Mill, the court suggests untruthful political speech is worth protecting:  “Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’   Mill, On Liberty (Oxford:  Blackwell, 1947), at 15;  see also Milton, Areopagitica, in Prose Works (Yale, 1959), Vol. II, at 561.”  (Id., at p. 279, fn. 19, 84 S.Ct. at 725, n. 19;  cf. Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339–340, 94 S.Ct. 2997, 3006–3007, 41 L.Ed.2d 789.)   In this case no proof of malice or reckless disregard was required or shown.   Thus, on a standard far below that needed for proof of defamation by a political figure, a far harsher remedy has been sanctioned, governmental censorship by means of prior restraint of the criticisms of the electoral opponent of an incumbent sheriff.1

In this respect the majority opinion is seriously misleading.   It quotes Garrison v. Louisiana (1964) 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 to the effect that “ ‘the lie, knowingly and deliberately published about a public official,’ ” and “ ‘[c]alculated falsehood fall[ ] into that class of utterances which “are no essential part of any exposition of ideas․”  [Citation.]   Hence, the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.’  (Id., at p. 75 [85 S.Ct. at p. 216].)”  (Maj. opn., at p. 391.)  Elections Code section 10013.5 does not require a finding of wilfulness, malice, or reckless disregard;  nor was any evidence presented below on the subject or any such finding made.

The two district court cases the majority most heavily relies upon are also distinguishable on that basis.   In both Tomei v. Finley (N.D.Ill.1981) 512 F.Supp. 695 and Vanasco v. Schwartz (S.D.N.Y.1975) 401 F.Supp. 87, calculated falsehoods were said to enjoy no constitutional protection.   Nevertheless, the majority draws a conclusion that neither matches the facts of this case or the statute under consideration:  “Permitting publication of falsehoods in the pamphlet would, by definition, defeat the state's interest in promoting a rational and informed electorate.”  (Maj. opn., at p. 393, emphasis added.)   A factual error is not a falsehood in my dictionary.

The majority's acceptance of the censorship imposed here finds no precedent in 200 years of United States Supreme Court jurisprudence.   The usual rule is that access to a forum, public or not, may not be denied based on content.2  (Carey v. Brown, supra, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263;  Grayned v. City of Rockford (1972) 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222;  Police Department v. Mosley (1972) 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212.)   Somewhat inconsistently, however, the court has upheld content-based exclusions from certain government sponsored forums under very unusual circumstances.  (Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567;  Perry Ed. Assn. v. Perry Local Ed. Assn. (1983) 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794;  Jones v. North Carolina Prisoner's Union (1977) 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629;  Greer v. Spock (1976) 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505;  Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770.)   But these are exclusions from the forum, not restrictions on content once access is obtained.   That distinction is quite significant.

In Perry a school board's collective bargaining agreement with the exclusive union representative of its teachers provided no other union would have access to the district's interschool mail system.   The Supreme Court countenanced the arrangement in these words:  “There is ․ no indication that the School Board intended to discourage one viewpoint and advance another.   We believe it is more accurate to characterize the access policy as based on the status of the respective unions rather than their views.   Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity.   These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property.”  (Perry Ed. Assn. v. Perry Local Ed. Assn., supra, 460 U.S. at p. 49, 103 S.Ct. at p. 957.)

A similar analysis was applied in Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567.   There, the NAACP was appropriately denied entry into a government sponsored charity drive among federal employees.   In Jones v. North Carolina Prisoner's Union, supra, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629, the court permitted denial of access to a prison by a union seeking to organize the inmates.  (See also Procunier v. Martinez (1974) 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224.)   The court reached the same result in Greer v. Spock, supra, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505, where a partisan political speech was not allowed on a military base in accordance with a policy prohibiting all political campaigning.  (See also Brown v. Glines (1980) 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540.)   Finally, in Lehman v. City of Shaker Heights, supra, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770, an ordinance banning political advertising in spaces sold for commercial advertising on municipal buses was upheld.

These cases are obviously distinguishable from the present.   In the words of Justice Brennan, “[they] involved an unusual forum, which was found to be nonpublic, and the speech was determined for a variety of reasons to be incompatible with the forum.”  (Perry Ed. Assn. v. Perry Local Ed. Assn., supra, 460 U.S. at p. 60, 103 S.Ct. at p. 963 (dis. opn. of Brennan, J., Marshall, Powell, and Stevens, JJ. concurring).)

We are concerned with political speech directed to the voting public as a whole, not a discrete group whose rights have already been impaired or delegated for reasons unrelated to the proposed speech, i.e., prisoners, soldiers, federal employees, and union members.   Also, this case does not relate to content-based denial of access to the forum but censorship of content itself within the forum.   Even in a government forum, the latter is permitted, if at all, only in cases presenting a clear and present danger to the state, or where the speech is obscene, nonpolitical, and children are in the audience.   (Bethel School Dist. No. 403 v. Fraser (1986) 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549;  Cohen v. California (1971) 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284;  Tinker v. Des Moines Community School Dist. (1969) 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731.)

The forum access cases “provide some support for the notion that the government is permitted to exclude certain subjects from discussion in non-public forums.   They provide no support, however, for the notion that government, once it has opened up government property for discussion of specific subjects, may discriminate among viewpoints on those topics․  [¶] Once the government permits discussion of certain subject matter, it may not impose restrictions that discriminate among viewpoints on those subjects whether a nonpublic forum is involved or not.   This prohibition is implicit in the Mosley line of cases, in Tinker v. Des Moines School District, 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct. 733, 49 Ohio Ops.2d 222 (1969), and in those cases in which we have approved content based restrictions on access to government property that is not a public forum.   We have never held that government may allow discussion of a subject and then discriminate among viewpoints on that particular topic, even if the government for certain reasons may entirely exclude discussion of the subject from the forum.   In this context, the greater power does not include the lesser because for First Amendment purposes exercise of the lesser power is more threatening to core values.   Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of ‘free speech.’ ”  (Perry Ed. Assn. v. Perry Local Ed. Assn., supra, 460 U.S. at pp. 60–62, 103 S.Ct. at pp. 963–964 (dis. opn. of Brennan, J.).)

As the majority itself noted in Perry, in the case of public forums the rule is rather well settled:  “Reasonable time, place, and manner restrictions are permissible, [but] a content-based prohibition [of access to the forum] must be narrowly drawn to effectuate a compelling state interest.  Widmar v. Vincent [ (1981) 454 U.S. 263] at 269–270 [102 S.Ct. 269 at 279, 70 L.Ed.2d 440].”  (Perry Ed. Assn. v. Perry Local Ed. Assn., supra, 460 U.S. 37, 46, 103 S.Ct. 948, 955.)   In Widmar the court found another portion of the First Amendment, the Establishment of Religion clause, itself insufficient to constitute such a compelling governmental interest:  A university providing a forum open to student speakers may not ban access to the forum for religious speech.   Similarly, political speech, however offensive to its intended recipients or the government, is not subject to suppression under the compelling interest standard (Cohen v. California, supra, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284;  Tinker v. Des Moines Community School Dist., supra, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731), although obscene speech in a high school assembly may be repressed.  (Bethel School Dist. No. 403 v. Fraser, supra, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549.)

To be sure, in the case of nonpublic forums, the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.”  (United States Postal Service v. Council of Greenburgh Civic Assns. (1981) 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517;  see also City Council v. Taxpayers for Vincent, supra, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772.)   Still, with respect to nonpublic forums, in addition to the power to regulate with respect to time, place, and manner, the state may condition access in order to achieve the intended purposes of the forum, so long as the regulation “is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.  [Citation.]”  (Perry Ed. Assn. v. Perry Local Ed. Assn., supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955.)

Thus, a university might hold a Shakespeare festival and limit the productions to those of the Bard.   Or the Forest Service might provide a bulletin board for the exclusive use of those offering cabins for rent.   Or the Department of Agriculture might sponsor lectures on the cultivation of wheat, while refusing such services to those who wish to discuss marijuana propagation techniques.   But no case from either the United States Supreme Court or the Supreme Court of California holds that one having lawful access to a government forum, as candidate Calligan surely did, must suffer state censorship of material relating to the approved subject matter.

Consequently, contrary to the conclusion of the majority, the forum access cases provide no constitutional defense for the blatant censorship involved here, no matter how this forum might be characterized.   To illustrate:  An ordinance purporting to allow only truthful political advertising on municipal buses would be unthinkable.   A regulation providing for “truthfulness review” of campaign speeches on military bases would be laughable.   Similar restrictions imposed upon political access to prisoners, school teachers, or federal employees would fare no better.

The holding of the majority is unabashedly the idea that “truth” itself might be a proper subject upon which to condition access to a forum.  (Maj. opn., at p. 395.)   That notion is essentially unprecedented, constitutionally intolerable, and borders on the Orwellian in my view.   I recognize the majority has managed to find comfort in two isolated district court decisions, Tomei v. Finley, supra, 512 F.Supp. 695 and Vanasco v. Schwartz, supra, 401 F.Supp. 87.   But Vanasco is of no assistance to the majority, quite the contrary.   There the court specifically declared the statute before it unconstitutional, partly because it required no showing of actual malice per the New York Times standard.   The three judge district court panel was affirmed in this holding in a memorandum decision by the Supreme Court (Schwartz v. Vanasco (1976) 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 630).   Tomei actually did engage in naked political censorship, but the apparent lack of any similar authority from a federal appellate court in the 200 years since the First Amendment was adopted strongly suggests the spurious nature of that case.

Tomei is hardly binding on us.   These words are, however:  “Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials․  [Citation.]   The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’  [Citation.]”  (New York Times Co. v. Sullivan, supra, 376 U.S. 254, 271, 84 S.Ct. 710, 721, 11 L.Ed.2d 686.)

This statute is an unalloyed example of state censorship and ought to be eradicated before its virus can spread to other vulnerable hosts whose speech the government might desire to stifle or abate.   Substantively, it is born of a benign paternalism and longing for “good government”;  but it is as misguided now as the Sedition Act was in its day.   The remedy for the political lie is to turn it against the opponent on the stump and in the press.   And “truth” is for the electorate, not the state, to determine, as Madison so correctly argued.   For these reasons I decline to consider the factual merits of this particular controversy, except to reiterate in passing that the evidence fell far short of the New York Times Co. v. Sullivan standard necessary to support a defamation action, yet somehow has been held sufficient to justify a prior restraint.

While, the substance of the statute is undiluted constitutional poison, its practical application is, if anything, worse.   Because of the timing involved in the election eve production of the voter pamphlet, there generally can be no effective appellate review before the election;  and that alone is constitutionally fatal.  (Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. 546, 560, 95 S.Ct. 1239, 1247, 43 L.Ed.2d 448.)   The final decision is essentially made, as in this case, by a single judge, based on highly contradictory declarations, acting under relatively urgent time constraints in the heat and glare of a partisan political race.   All this transpires with no discovery, no right to present testimony or other evidence beyond mere declarations, and no right to a jury trial.   To the losing candidate who has seen her statement purged before the election, the statute supplies absolutely no remedy should the decision later be overturned on the merits.

The draftspersons of the statute obviously hoped to sanitize this well-intended little pamphlet from the gutter garbage that generally passes for political rhetoric.   The notion is quixotic at best, as a review of the candidate material actually printed in this voter pamphlet amply demonstrates.   Far from achieving a noble victory for honor and good government, the authors of Elections Code section 10013.5 have lanced fundamental political liberties and freedom of expression instead.   I would hold the statute unconstitutional in its entirety as repugnant to the First Amendment of the United States Constitution.


1.   Section 10012 provides in relevant part:  “Each candidate for nonpartisan elective office in any local agency, including any city, county, city and county or district, may prepare a candidate's statement on an appropriate form provided by the clerk.   Such statement may include the name, age and occupation of the candidate and a brief description of no more than 200 words of the candidate's education and qualifications expressed by the candidate himself or herself;  ․“The clerk shall send to each voter together with the sample ballot, a voter's pamphlet which contains the written statements of each candidate that is prepared pursuant to this section․“The local agency may estimate the total cost of printing, handling, translating, and mailing the candidate's statements filed pursuant to this section, including costs incurred as a result of complying with the Voting Rights Act of 1965, as amended, and may require each candidate filing a statement to pay in advance to the local agency his or her pro rata share as a condition of having his or her statement included in the voter pamphlet․”

2.   Elections Code section 10013.5 provides in pertinent part:“․ During the 10–calendar-day examination period provided by this section, any voter of the jurisdiction in which the election is being held, or the clerk, himself or herself, may seek a writ of mandate or an injunction requiring any or all of the material in voter's pamphlet to be amended or deleted.   A peremptory writ of mandate or an injunction shall issue only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter, and that issuance of the writ or injunction will not substantially interfere with the printing or distribution of official election materials as provided by law.”

3.   Gates requested deletion of the following italicized portion of Calligan's statement:  “Is the sheriff above the law?   He's been convicted of a Federal crime and fined $100,000 which taxpayers paid.   He owned a bar, a state law violation, and covered-up a Felony Drunk Driving arrest.Is he a competent manager?   He's charged the taxpayers $5,100,000 for low security tents to house violent criminals and we've more lawsuits than any California jail.”

4.   The Registrar indicates in his declaration that each candidate in Orange County pay his or her pro rata share of the cost of printing the pamphlet.   The candidates do not, however, pay any portion of the cost of mailing the pamphlet.   Thus, the candidate is able to reach all the voters of Orange County for an estimated cost of $7,500.   The record indicates that it would cost a candidate approximately $200,000 to print and mail a similar statement directly.   Thus, the state, while providing no direct subsidy to the candidates, indirectly subsidizes their campaign by permitting them access to the voters at a drastically reduced marginal cost.

5.   Former section 10012 provided in pertinent part:  “Each candidate for nonpartisan elective office in any local agency, including any city, county, city and county or district, may prepare a candidate's statement on an appropriate form provided by the clerk.   Such statement may include the name, age and occupation of the candidate and a brief description of no more than 200 words, of the candidate's education and qualifications expressed by the candidate himself;  ․“ ․“The clerk shall reject any statement, which contains any obscene, vulgar, profane, scandalous, libelous or defamatory matter, or any language which in any way incites, counsels, promotes or advocates hatred, abuse, violence or hostility toward, or which tends to cast ridicule or shame upon any person or group or persons by reason of sex, race, color, religion or manner of worship, or any language or matter the circulation of which through the mails is prohibited by Congress․”

1.   A lie is a lie even though it travels under “factual error” clothing.

1.   A defamation action can only punish the defendant;  a prior restraint silences communication entirely, thus depriving the speaker of the opportunity to be heard and the audience of the right to hear.

2.   Whether the forum provided in this pamphlet is defined as public, limited public, nonpublic, or sui generis is of no moment in my view, although it will be convenient to use some of those terms on occasion.   The correct label, whatever it is, would not affect my conclusion because this is a clear example of content-based censorship of political speech and not a forum access case.Concededly, the line between forum-based and content-based exclusions is also quite fuzzy.  (Compare, for example, Carey v. Brown, supra, 447 U.S. 455, 100 S.Ct. 2286 and Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770;  see also Shiffrin, Government Speech (1980) 27 UCLA L.Rev. 565.)   But this seems a rather obvious case on that point.

TROTTER, Presiding Justice.

RICKLES, J.*, concurs.

Copied to clipboard