DREXEL v. NADLER (1991)

 Appellant, a candidate for election to the office of district attorney, challenges the Superior Court's peremptory writ of mandate directing the Santa Clara County Registrar of Voters to delete material from appellant's candidate statement prepared for the official voter's pamphlet.   Appellant contends Elections Code section 10013.5,¹ which permits amendment or deletion of material that is false, misleading, or inconsistent with statutory requirements, constitutes an unconstitutional prior restraint on campaign speech in a limited public forum.

We hold the statute constitutional and affirm.   We conclude that the official voter's pamphlet is a unique vehicle of expression, that the state has a compelling interest in providing accurate information, and that the Legislature has struck a constitutionally permissible balance in section 10013.5.

FACTUAL AND PROCEDURAL BACKGROUND

This dispute arises out of the 1990 campaign for the office of Santa Clara County District Attorney.   George Kennedy, Chief Deputy District Attorney, won election over Jerome Nadler, Deputy District Attorney.

Under section 10012, “[e]ach 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.   The 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.”

Both Kennedy and Nadler submitted candidate statements for the official voter's pamphlet.

In his statement, Kennedy explained that “[t]he District Attorney is responsible for fairly securing the conviction of criminals, including trial by jury․”   He claimed that he had “successfully prosecuted well over 100 jury trials․   Murderers I prosecuted are on death row.”   He noted:  “As Chief Deputy DA, I am in charge of our 156 attorneys and 37 investigators.   We have the highest felony conviction rate among major California counties.”   And finally:  “Public safety is my first priority.   Dangerous criminals must be removed.   I oppose plea-bargaining.”

In his statement, Nadler questioned the success of the current administration in obtaining “hard” sentences, as opposed to plea bargains.   Nadler contended that “[Kennedy] Did Not Send more than 20% of local felons to prison—1/313 less than the State average.”

Under section 10013.5, not less than 10 days before printing, the clerk must make a copy of the official voter's pamphlet available for public examination.   During the examination period, “any voter of the jurisdiction in which the election is being held, or the clerk, ․ may seek a writ of mandate or an injunction requiring any or all of the material in [the] 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․”

During the period for examination of statements, Santa Clara County voter Jeanne Drexel sought a writ of mandate directing the Registrar of Voters to delete portions of Nadler's statement as false and misleading.   As required under section 10013.5, Drexel named Nadler as the real party in interest.

The trial court agreed with Drexel regarding Nadler's statement that “[Kennedy] Did Not Send more than 20% of local felons to prison․”   The court reasoned:  “As a matter of law, the only governmental official empowered to ‘send’ felons, local or otherwise, to prison are Superior Court Judges.   Although the District Attorney and his or her deputies play an important role in the process, the statement misleads voters to believe that a responsibility of the office of District Attorney is to send local felons to prison and that [Kennedy] has failed in that responsibility.”

The trial court was “mindful of the important Constitutional issues involved” and of the “clear and convincing proof” required under section 10013.5.  But the court was also “mindful of the importance which voters attach to statements in voter's pamphlets” and “mindful that Mr. Nadler can very easily cure this misleading aspect of the statement, while preserving his right to vigorously criticize his opponent[']s involvement in agreeing to dispositions where felons are not incarcerated in state prison, if that is what he wishes to do.”

The court commanded the Registrar of Voters, “immediately on receipt of this Writ, to delete the word ‘send’ from the above referenced phrase, and permit the real party in interest, Jerome S. Nadler, to insert another term in its place or otherwise amend the phrase so as not to imply, directly or indirectly, that it is the responsibility of the office of District Attorney to send local felons to prison nor that Mr. Kennedy has failed in that responsibility.”

Nadler appeals.   Drexel, represented by Kennedy, responds.

DISCUSSION

I. Appellant's Contentions

Appellant challenges the constitutionality of section 10013.5, whereby a voter or clerk may seek a judicial declaration that material slated for a candidate's statement in the official voter's pamphlet is false, misleading, or inconsistent with statutory requirements, thus warranting amendment or deletion.   Appellant contends section 10013.5, on its face, violates the First Amendment of the United States Constitution and the Free Speech Clause of the California Constitution.   Appellant argues alternatively that, even if the statute is constitutionally sound, the trial court misapplied the statute in this case.   Thus, appellant contends the particular statement at issue here was not false or misleading under the clear and convincing proof standard of section 10013.5.

The First Amendment, as applicable to the states through the Fourteenth Amendment, provides that “Congress shall make no law ․ abridging the freedom of speech․”  (U.S. Const., 1st Amend.)   The Free Speech Clause 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.”  (Cal. Const., art. I, § 2.)

 As appellant points out, our Supreme Court has viewed the state constitutional guarantee of free speech as even “more definitive and inclusive” (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116) than the federal.   The fact that the state provision is broader, however, does not necessarily mean that speech falling outside the ambit of the First Amendment will always be protected by the state provision.   Appellant has wholly failed to explain why the particular statute at issue here offends the state constitutional guarantee of free speech even if, assuming arguendo, the statute passes federal constitutional muster.   Nor do we perceive a basis for such expansive application of the California provision in this case.   Thus, we shall conduct our review on First Amendment grounds alone.

II. Mootness

Respondent suggests this matter is moot because the election is over.   Respondent is certainly correct that, even if appellant could persuade us the trial judge erred, it is impossible to reinsert the deleted material into a voter's pamphlet distributed last spring.

 It is a fact of life that the appellate process normally takes longer than the electoral process.   As a result, election cases often present legal questions “ ‘capable of repetition, yet evading review.’ ”  (Moore v. Ogilvie (1969) 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1.)   When such questions are of general public interest, however, courts will sometimes decide them although the relief sought by the particular petitioner is no longer available.  (See, e.g., Unger v. Superior Court (1984) 37 Cal.3d 612, 614, 209 Cal.Rptr. 474, 692 P.2d 238 [court examined issue whether political party and its governing board are prohibited from endorsing or otherwise supporting a campaign not to confirm a Supreme Court justice although court could not afford relief to petitioners seeking to prevent such endorsement in election already concluded];  Ferrara v. Belanger (1976) 18 Cal.3d 253, 259, 133 Cal.Rptr. 849, 555 P.2d 1089 [court examined issue regarding the filing of “pro” and “con” ballot arguments in municipal initiative elections although court could not grant relief to petitioners denied the right to file such arguments for election already concluded];  Green v. Layton (1975) 14 Cal.3d 922, 925, 123 Cal.Rptr. 97, 538 P.2d 225 [court declared unconstitutional requirement that potential candidate, upon filing of declaration of candidacy, make irrevocable choice between paying filing fee or submitting 500 additional signatures although court could not afford relief to potential candidate forced to make such choice for election already concluded].)

 Like numerous other election cases in which review is sought through ordinary appeal, this one is moot in terms of our ability to afford specific relief to appellant.   Nonetheless, to the extent this appeal raises issues of general public interest, we may exercise our prerogative to consider the matter.   Whether section 10013.5, on its face, violates the First Amendment of the United States Constitution is undoubtedly an issue of general public interest.   Yet respondent insists this court need not consider the issue because it has already been resolved by the federal Court of Appeals (Geary v. Renne (9th Cir.1990) 914 F.2d 1249) and by the state Court of Appeal (Patterson v. Board of Supervisors (1988) 202 Cal.App.3d 22, 248 Cal.Rptr. 253).   Since the briefing and argument of this case, however, the federal court has voted to rehear Geary v. Renne, supra, en banc.   And Patterson v. Board of Supervisors, supra, addressed a different, albeit analogous, statute.   Therefore, we shall exercise our prerogative to consider whether section 10013.5, on its face, violates the First Amendment.

 But, even if we find that section 10013.5 is constitutionally sound, we shall decline to consider whether the trial court erred in concluding that the particular language challenged here was false or misleading under the clear and convincing proof standard.   Although we think it debatable whether the trial court properly applied the statute in this case, we do not believe post-election review of particular language included in or excluded from the official voter's pamphlet comes under the rubric of general public interest.   Each challenge under section 10013.5 will be different because the challenged language will be different.   In each case, the statutory test must be applied to the particular language within the particular context.   We see no useful purpose in deciding after-the-fact whether particular language was or was not appropriate.

III. The First Amendment Framework

Appellant's challenge to the constitutionality of section 10013.5 touches upon three spheres of First Amendment analysis.   Appellant contends the statute constitutes an unlawful (1) prior restraint of (2) campaign speech in a (3) limited public forum.   Application of any one of these modes of analysis may lead to invalidation of a state statute.   The confluence of the three spheres in this case calls for particularly careful scrutiny.  (See Widmar v. Vincent (1981) 454 U.S. 263, 276, 102 S.Ct. 269, 277, 70 L.Ed.2d 440 [“Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content.”].)

We begin with the law governing public fora.  “The public forum doctrine arose out of the [Supreme] Court's efforts to address the recurring and troublesome issue of when the First Amendment gives an individual or group the right to engage in expressive activity on government property.”  (Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 815, 105 S.Ct. 3439, 3455, 87 L.Ed.2d 567 (dis. opn. of Blackmun, J.).)   The use of government property for expressive activity furthers not only the First Amendment rights of individuals but also the interests of society as a whole:  “it allows the ‘uninhibited, robust, and wide-open’ debate about matters of public importance that secures an informed citizenry, [citation];  it permits ‘the continued building of our politics and culture,’ [citation];  it facilitates political and societal changes through peaceful and lawful means, [citation];  and it helps to ensure that government is ‘responsive to the will of the people,’ [citation].”  (Id. at pp. 815–816, 105 S.Ct. at pp. 3455–3456.)   Yet “[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.”  (Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. 788, 799–800, 105 S.Ct. 3439, 3447–3448.)

In Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45–46, 103 S.Ct. 948, 954–956, 74 L.Ed.2d 794, the Supreme Court identified three types of government property:  (1) traditional public fora, such as public streets and parks, which “by long tradition or by government fiat have been devoted to assembly and debate” (id. at p. 45, 103 S.Ct. at p. 955);  (2) “public property which the State has opened for use by the public as a place for expressive activity,” such as meeting facilities and theaters (ibid.);   and (3) nonpublic fora, such as an interschool mail system (id. at p. 46, 103 S.Ct. at p. 955).

 The second category may be further defined as a public forum “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.”  (Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. at p. 802, 105 S.Ct. at p. 3449.)   A forum “created for a limited purpose such as use by certain groups [citation], or for the discussion of certain subjects [citation]” is deemed a limited public forum.  (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at p. 46, fn. 7, 103 S.Ct. at p. 955, fn. 7.)   The fact that the forum is “limited” permits the state to exclude that which is not germane—in other words, to regulate content in order to preserve the purpose of the forum.  (See Cinevision Corp. v. City of Burbank (9th Cir.1984) 745 F.2d 560, 574.)   But so long as the state “retain[s] the open character of the facility, ․ it is bound by the same standards as apply in a traditional public forum.   Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.”  (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955.)   In addition, any restrictions on speech in a public forum must “leave open ample alternative channels for communication․”  (Clark v. Community for Creative Non–Violence (1984) 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221.)

We turn next to campaign speech.  “[I]f it be conceded that the First Amendment was ‘fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’ [citation] then it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.”  (Monitor Patriot Co. v. Roy (1971) 401 U.S. 265, 271–272, 91 S.Ct. 621, 625–626, 28 L.Ed.2d 35.)   But, at the same time, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.”  (Storer v. Brown (1974) 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714.)   Accordingly, the states have enacted laws to govern their elections.

When faced with a constitutional challenge to a specific provision of a state's election laws, a court “must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.   It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.   In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.”  (Anderson v. Celebrezze (1983) 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547.)

While the Supreme Court has recognized “the legitimacy of the State's interest in fostering informed and educated expressions of the popular will” (Anderson v. Celebrezze, supra, 460 U.S. at p. 796, 103 S.Ct. at p. 1574), the Court has routinely struck down state election laws that restrict campaign speech in order to reduce voter confusion.  (See, e.g., Eu v. San Francisco Cty. Democratic Cent. Com. (1989) 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 [striking down California statute prohibiting primary endorsements by the official governing bodies of political parties];  Tashjian v. Republican Party of Connecticut (1986) 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 [striking down Connecticut statute requiring voters in political party primary to be registered members of that party];  Anderson v. Celebrezze, supra [striking down Ohio statute imposing early filing deadline upon independent candidates for President];  Brown v. Hartlage (1982) 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 [striking down Kentucky statute prohibiting candidates from promising to serve at a salary less than that fixed by law].)

The Court's decisions reflect great “faith in the ability of individual voters to inform themselves about campaign issues” (Anderson v. Celebrezze, supra, 460 U.S. at p. 797, 103 S.Ct. at p. 1574), and “[a] State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism” (id. at p. 798, 103 S.Ct. at p. 1575).   Even untrue or misleading campaign speech may be protected.  “In a political campaign, a candidate's factual blunder is unlikely to escape the notice of, and correction by, the erring candidate's political opponent.   The preferred First Amendment remedy of ‘more speech, not enforced silence,’ [citation] thus has special force.”  (Brown v. Hartlage, supra, 456 U.S. at p. 61, 102 S.Ct. at p. 1533.)

 Finally, we review the law regarding prior restraints on expression.   “Prior restraints are not unconstitutional per se” (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448), but “[a]ny prior restraint”—in the campaign arena or elsewhere—faces “a ‘heavy presumption’ against its constitutional validity” (Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1).   Because “the freedoms of expression must be ringed about with adequate bulwarks” (Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584), constitutionally permissible prior restraints are “exceptional cases” (Near v. Minnesota (1931) 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357).

In Freedman v. Maryland (1965) 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, the Court held that a local censorship board empowered to restrain distribution of allegedly obscene materials may act only under rigorous procedural safeguards.   The Court reaffirmed Freedman in Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at page 560, 95 S.Ct. at page 1247, reiterating that “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.”

Although Freedman, Southeastern Promotions, and numerous other cases in this area concern prior restraints imposed initially by administrative bodies, a prior restraint imposed from the outset by judicial rule may be equally objectionable.  (See, e.g., New York Times Co. v. United States (1971) 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 [lifting trial court stays prohibiting publication of the Pentagon Papers];  Near v. Minnesota, supra [reversing trial court's permanent injunction against defendants' publication and striking down Minnesota statute prohibiting any “malicious, scandalous and defamatory newspaper, magazine or other periodical”].)

From these three spheres of First Amendment analysis, we glean the following principles applicable to our consideration of section 10013.5:  The state must have a compelling interest in excising from the voter's pamphlet material that is false, misleading, or inconsistent with statutory requirements.   On balance, the state's interest must be more compelling than the candidate's interest in free speech.   The statute itself must be narrowly drawn to effectuate the state's interest.   The party who challenges the candidate statement must shoulder the burden of proving that the material is false, misleading or non-conforming.   There must be adequate opportunity for judicial review, and a candidate whose statement is amended or deleted must have ample alternative channels of communication.   Finally, we must determine whether this is an “exceptional case.”

IV. Constitutionality of Section 10013.5

Applying the principles outlined above, we conclude that section 10013.5 does not run afoul of the First Amendment.

The parties agree that the official voter's pamphlet falls into the second category of public property, constituting not a traditional public forum but one created by the government.   Moreover, the parties agree that the pamphlet constitutes a limited public forum, created for the use of certain groups and for the discussion of certain subjects.   State and federal courts have also viewed the California voter's pamphlet as a limited public forum.  (See Gebert v. Patterson (1986) 186 Cal.App.3d 868, 874, 231 Cal.Rptr. 150;  Kaplan v. County of Los Angeles (9th Cir.1990) 894 F.2d 1076, 1080.)

We conclude that the state, having created the official voter's pamphlet as a limited public forum, has a compelling interest in prohibiting material that is false, misleading, or beyond what the statute allows.   The voter's pamphlet provides a unique vehicle of expression.   It is assembled, published, and distributed by the state to all registered voters.   It carries the imprimatur of the government and is likely to “carry greater weight in the minds of the voters than normal campaign literature․”  (Knoll v. Davidson (1974) 12 Cal.3d 335, 352, 116 Cal.Rptr. 97, 525 P.2d 1273;  see also Horwath v. City of East Palo Alto (1989) 212 Cal.App.3d 766, 776, 261 Cal.Rptr. 108;  Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 585, 240 Cal.Rptr. 784;  Gebert v. Patterson, supra, 186 Cal.App.3d 868, 874, 231 Cal.Rptr. 150.)

Yet our decision is not based so much on concern about voter confusion.   Indeed, we appreciate the wisdom of those cases uniformly rejecting voter confusion as a legitimate reason for inhibiting speech.   We, too, abhor the notion of the state as a paternalistic figure saving the voters from their own inadequacy, gullibility, or miscalculation.   Rather, our concern focuses on the opponent who is subject to or whose candidacy may be irreparably harmed by a statement that is false, misleading, or inconsistent with statutory requirements.

While amendment or deletion of a candidate's statement from the voter's pamphlet runs counter to the First Amendment guarantee of free speech, the candidate retains the right to disseminate the offending information through any channel other than the official voter's pamphlet.   And his opponent may then respond in kind.   But when a false, misleading, or inconsistent statement is not amended or deleted from the voter's pamphlet, the opponent is left without a comparable means of response.   The opponent might respond through print or broadcast media, but it is unlikely the message will reach every voter receiving the voter's pamphlet.   Even if that were the case, the media would not carry the official air that the pamphlet does.   Or the opponent might respond by mailing campaign literature to every registered voter but, again, such partisan materials are unlikely to weigh as heavily with voters as the pamphlet.   Or, under some circumstances, the opponent might bring a civil action, but the resolution of a lawsuit would most likely occur long after the election.   While “more speech” is ordinarily the “preferred First Amendment remedy” (Brown v. Hartlage, supra, 456 U.S. at p. 61, 102 S.Ct. at p. 1533), more speech is an inadequate remedy here.   The official voter's pamphlet is not only unique;  it is also a one-time, encapsulated publication for each election.   An aggrieved candidate is left without a comparable means of response.

Appellant insists the state's interest in accuracy could be effectuated through inclusion in the voter's pamphlet of a disclaimer such as the following:  “ALL CANDIDATE STATEMENTS ARE SUBMITTED BY THE CANDIDATES THEMSELVES AND ARE THE OPINIONS OF THE CANDIDATES ALONE.   INCLUSION IN THIS PAMPHLET DOES NOT IMPLY ANY REVIEW OF THE TRUTH OF SUCH STATEMENTS BY THE GOVERNMENT.”   We are not convinced that such a disclaimer would counter the strong influence wielded by the official voter's pamphlet.   Nor would it particularly aid a candidate who is subjected to false or misleading statements but who has no adequate avenue of response.

In sum, we are persuaded that the state's interest in assuring the accuracy of information in the official voter's pamphlet—and, thus, the integrity of the election process itself—is more compelling than the candidates' interest in free speech within the voter's pamphlet.   Thus, the official voter's pamphlet constitutes the exceptional case that justifies a narrow, well-defined prior restraint on speech.

We conclude further that the statute is sufficiently narrow.   We have little trouble with the amendment or deletion of material that is “false” or “inconsistent” with the requirements of the statute.  “[T]here is no constitutional value in false statements of fact.   Neither the intentional lie nor the careless error materially advances society's interest in ‘uninhibited, robust, and wide-open’ debate on public issues.”  (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789;  see also Brown v. Hartlage, supra, 456 U.S. at p. 60, 102 S.Ct. at p. 1532 [“demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements”].)  Presumably, a dispute over such statements may ordinarily be resolved through verifiable fact or reference to specific statutory requirements.   The amendment or deletion of material that is “misleading” gives us pause.  “In the realm of ․ political belief, sharp differences arise․  [T]he tenets of one man may seem the rankest error to his neighbor.”  (Cantwell v. Connecticut (1940) 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213;  but see People v. Witzerman (1972) 29 Cal.App.3d 169, 179, 105 Cal.Rptr. 284 [court found “nothing unclear in the adjective ‘misleading’ ” in Bus. & Prof.Code, § 17500, prohibiting false advertising].)

 We are persuaded the statute is valid, however, because the clerk or voter who challenges the candidate statement must satisfy a clear and convincing standard.  (See Sheehan v. Sullivan (1899) 126 Cal. 189, 193, 58 P. 543 [clear and convincing evidence is “ ‘sufficiently strong to command the unhesitating assent of every reasonable mind’ ”].)  This heavy burden insures that the statute will effectuate the state's compelling interest and no more.   We also note that the answer to the question whether the challenged material is false, misleading, or inconsistent with statutory requirements will not change with publication of the material.   Thus, this is not a case in which prior restraint is based on supposition and conjecture, such as the fear of harm to national security.  (See, e.g., New York Times Co. v. United States, supra, 403 U.S. 713, 91 S.Ct. 2140.)   Here, the statutory criteria for imposing a prior restraint are as apparent and applicable before, as after, publication.

 In addition, the statute is applied in the first instance by the judiciary after a full hearing on the merits.   Appellant notes that in this case the trial court's decision followed “the depositions of the two (2) candidates, the filing of Briefs and Declarations, and extensive oral argument․”   And, although the opportunity for immediate appellate review is unnecessary when there is a judicial hearing on the merits at the first instance of injunction (see FW/PBS, Inc. v. City of Dallas (1990) 493 U.S. 215, ––––, 110 S.Ct. 596, 606, 107 L.Ed.2d 603;  Interstate Circuit v. Dallas (1968) 390 U.S. 676, 690, fn. 22, 88 S.Ct. 1298, 1306, fn. 22, 20 L.Ed.2d 225;  compare Nationalist Socialist Party v. Skokie (1977) 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 [immediate review essential where injunction imposed without full hearing on the merits] ), an aggrieved party is not without appellate resources.   For example, where there is sufficient public interest in prompt review, an appellate court may examine an election issue via writ petition even though the trial court's order is otherwise appealable.  (See, e.g., Brown v. Superior Court (1971) 5 Cal.3d 509, 514–515, 96 Cal.Rptr. 584, 487 P.2d 1224;  8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 118, pp. 753–757.)   Alternatively, a party may file a notice of appeal along with a petition for writ of supersedeas seeking to stay the trial court judgment pending appeal.  (See Code Civ.Proc., § 923;  9 Witkin, Cal. Procedure, supra, Appeal, § 214, pp. 221–222.)

Thus, we agree with the decision in the analogous case of Patterson v. Board of Supervisors, supra, 202 Cal.App.3d 22, 248 Cal.Rptr. 253.   In that case, appellants challenged the constitutionality of section 3795, pertaining to elections on county ordinances, initiatives, and measures, and section 5025, pertaining to elections on municipal proposals, ordinances, and measures.   Like section 10013.5, both sections at issue in Patterson provide for public examination of statements submitted for official voter's pamphlets.   Like section 10013.5, both sections allow any voter to seek a writ of mandate, which “shall be issued only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter․”  (§§ 3795, 5025.)   Appellants contended these provisions were vague and overbroad and operated as a prior restraint on protected political speech in violation of the federal (U.S. Const., 1st Amend.) and state (Cal. Const., art. I, § 2) Constitutions.

The Patterson court rejected appellants' constitutional challenge.   The court found the voter's pamphlet to be a limited public forum and concluded that “[r]estricting information in the voter pamphlet to material which is neither false, misleading nor inconsistent with the purpose of the forum represents the city's chosen method to best foster the integrity of the electoral process and to aid its citizens in making informed voting choices.”  (Id. at p. 30, 248 Cal.Rptr. 253.)   But the Patterson court also recognized that government restrictions must be narrowly drawn when protected rights of speech are implicated.

The court determined sections 3795 and 5025 provided adequate safeguards:  No government official or employee was granted unfettered authority to censor pamphlet statements.   Rather, the registrar or a voter would have to petition a neutral judicial officer.   To prevail, the petitioner would have to meet a standard of clear and convincing proof.   Moreover, the statutory requirement that the challenged statements be “false, misleading or inconsistent” was tailored to promote the purpose of the limited public forum.   And “[m]ost importantly, the provisions under attack neither limit nor curtail the ability of individuals or groups to assemble, to speak, to distribute literature or to lobby public opinion in whatever form and content they choose.”  (Patterson v. Board of Supervisors, supra, 202 Cal.App.3d at p. 31, 248 Cal.Rptr. 253.)

Appellant attempts to distinguish the statutes at issue in Patterson, governing statements on initiatives and such, from the statute at issue here, governing candidate statements.   He contends:  “When a candidate includes scurrilous or false statements in its [sic ] ballot statement, the negative reaction of the electorate or the press to those statements fall [sic ] on the candidates themselves.  [¶] A very different situation applies in ballot arguments.   When a supposed ‘proponent’ of a ballot argument pens a scurrilous and misleading argument in support of a ballot proposition, it is not that individual who is harmed by the backlash to the argument.   Whereas the writer of a Candidate Statement is representing only him or herself, the writer of a ballot argument is only a representative of those class [sic ] of individuals who support one side of the argument.   Like a purported representative of a class action, the author of a ballot argument occupies a representative and fiduciary relationship to its class.”

We do not view this distinction as significant.   In both cases, it is the opposition—either the opposing candidate or the opposing viewpoint in an initiative battle—that is harmed by false or misleading statements and is left without a comparable means of response.   In both cases, the government has a significant interest in preserving the integrity of the election process.

Appellant suggests Patterson is inapposite to the case at bar because the ballot arguments challenged in Patterson were viewed as not germane, rather than false or misleading.   We do not necessarily agree with appellant's view of the materials challenged in Patterson but, in any event, the court upheld statutes allowing amendment or deletion of material that is “false, misleading, or inconsistent with [statutory] requirements․”  (§§ 3795, 5025.)   As appellant points out, we are not bound by Patterson (see Los Angeles Police Protective League v. City of Los Angeles (1985) 163 Cal.App.3d 1141, 1147, 209 Cal.Rptr. 890 [overruled on other grounds in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 427, fn. 28, 253 Cal.Rptr. 426, 764 P.2d 278];  9 Witkin, Cal. Procedure, supra, Appeal, § 772, pp. 740–742) but, to the extent that Patterson upheld the constitutionality of legislation analogous to section 10013.5, the decision is instructive.

Appellant suggests further that we should ignore Patterson because Patterson ignored Wilson v. Superior Court (1975) 13 Cal.3d 652, 119 Cal.Rptr. 468, 532 P.2d 116.   As a candidate for county assessor, Wilson distributed a newsletter containing reprints of newspaper articles referring to a prior bribery prosecution of his opponent, incumbent Watson.   The articles had been published more than six years earlier and did not disclose that Watson was acquitted.   The newsletter solicited funds “ ‘to prevent the type of corruption and “special interest” control that we have suffered over the years.’ ”  (Id. at p. 655, 119 Cal.Rptr. 468, 532 P.2d 116.)   Watson sued for libel and sought an injunction against further distribution of the newsletter.   The trial court granted the injunction, finding the newsletter to be misleading.   Wilson sought a peremptory writ to prevent the trial court from enforcing the injunction.   The Supreme Court issued the writ, finding that the injunction was an unconstitutional prior restraint on publication.

Wilson is readily distinguishable from Patterson and from the case at bar.   Wilson's newsletter did not constitute a limited public forum, created by the government to facilitate the election process.   Rather, Wilson's newsletter was partisan campaign literature, and the trial judge plainly lacked authority to delete a false or misleading assertion prior to publication.   Under the First Amendment, Wilson was free to disseminate the information;  Watson was free to respond.  Patterson did not mention Wilson because “it is not the traditional political speech of campaign literature ․ that is at issue [in Patterson ].”  (Patterson v. Board of Supervisors, supra, 202 Cal.App.3d at p. 29, 248 Cal.Rptr. 253.)   The official voter's pamphlet constitutes a limited public forum and here, as in Patterson, the trial court properly relied on statutory authority to rule that appellant could not use certain material in the forum.   And, unlike the situation in Wilson, the trial court here and in Patterson did not hold that appellant must eliminate the offending statement from his campaign entirely, but only from the official voter's pamphlet.   We believe the reasoning of Patterson is sound and equally applicable to candidate statements under section 10013.5.

In effect, through enactment of the statutes at issue in Patterson and here, California has supplemented its defamation laws by specifically forbidding deceptive campaign speech.  (See Tribe, American Constitutional Law (2d ed. 1988) § 13–26, p. 1131.)   For that reason, it is useful to look at New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, a defamation case in which the Supreme Court reiterated and applied fundamental First Amendment concepts.

In New York Times, leaders of Alabama's black community ran a full-page advertisement in the New York Times seeking financial support for student and right-to-vote movements.   The Montgomery Commissioner of Public Affairs, who supervised the city police and fire departments, brought a civil libel action against the newspaper publisher and the four clergymen whose names appeared in the advertisement.   It was uncontroverted that some statements in the advertisement inaccurately described events in Montgomery.   Pursuant to Alabama law, the trial judge instructed the jury that the statements were libelous per se and, thus, malice and injury were presumed.   Further, the jury could hold defendants liable upon a finding that they had published the advertisement and that the statements were made “of and concerning” plaintiff.  (Id. at p. 262, 84 S.Ct. at p. 716.)

The Supreme Court considered the case “against the background of a 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, supra, 376 U.S. at p. 270, 84 S.Ct. at p. 720.)   The court also observed “[t]hat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ․ to survive,’ ․”  (Id. at pp. 271–272, 84 S.Ct. at pp. 721–722.)

The court held the Alabama law “constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.”  (New York Times Co. v. Sullivan, supra, 376 U.S. at p. 264, 84 S.Ct. at p. 717, fn. omitted.)   The court cited the chilling effect on speech, both truthful as well as false, of “[a] rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount․”  (Id. at p. 279, 84 S.Ct. at p. 725.)   Such a rule “dampens the vigor and limits the variety of public debate” and leads to “self-censorship,” causing speakers to “steer far wider of the unlawful zone.”  (Ibid.)

Yet the court did not entirely disallow defamation actions by public officials.   In reaching its decision, the court weighed competing interests.   On one side of the scale was defendants' First Amendment right to speak freely, even falsely, in the political arena and the likely chilling effect of a potential defamation action resulting in an award of damages to plaintiff.   On the other side was the state's interest in protecting its citizens from defamatory statements.   The court reconciled these interests by holding that a “public official” is prohibited “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.)

Thus, in New York Times, the court struck a constitutional balance through a ruling that absolved defendants of liability for inadvertent falsehoods but held them responsible for knowing inaccuracies or inaccuracies resulting from reckless disregard.   Moreover, plaintiff had to prove that defendants spoke with actual malice.   The ruling recognized the right of a public official to recover damages for defamation in egregious circumstances but, at the same time, protected defendants' First Amendment rights of free speech by keeping the chilling effect to a minimum.

In this case, we have on one side appellant's First Amendment right to speak freely, even falsely, in the campaign arena and the potential chilling effect of a statute allowing amendment or deletion of certain material.   On the other side is the government's interest in protecting candidates from defamatory statements in a one-time publication under the government's imprimatur and, thereby, preserving the integrity of the election process.   Similar to traditional defamation laws, which establish causes of action for libel and slander, section 10013.5 establishes a procedure to deal with false or misleading statements in the election context.   And we believe that our Legislature, like the Supreme Court in New York Times, has struck a constitutionally proper balance in section 10013.5.

The statute requires the party challenging material slated for the voter's pamphlet to prove to a court, by clear and convincing evidence, that the material is false, misleading, or inconsistent with statutory requirements.   A candidate whose statement is found objectionable need not pay damages.   Nor does section 10013.5, unlike other statutory prohibitions on campaign speech that have been struck down, impose a criminal penalty (see Mills v. Alabama (1966) 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484), assess a fine (see Vanasco v. Schwartz (S.D.N.Y.1975) 401 F.Supp. 87, 89, fn. 5, aff'd (1976) 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 630), or invalidate the election (see Brown v. Hartlage, supra, 456 U.S. 45, 102 S.Ct. 1523).  Rather, the candidate whose statement is found to be false, misleading, or inconsistent need only correct the defect in the statement.   The candidate may still disseminate the information via other channels of communication—through other public fora, through print and broadcast media, through campaign literature—to which the aggrieved candidate may respond in kind.   The chilling effect is minimal.

Despite the rigorous standard for application of section 10013.5, appellant insists that a candidate whose statement is challenged will experience significant trouble, expense, and negative publicity.   Appellant even suggests the procedure for challenging material under section 10013.5 may be used by a “powerful incumbent” to ferret out “disloyal” subordinates supporting the other side.   He quotes extensively from Nadler's deposition in which Drexel's lawyer asked Nadler for the names of people with whom he had discussed his candidate statement.   We believe the courts can deal effectively with blatant abuses of the procedures under section 10013.5.   Moreover, we believe any detriment suffered by the candidate whose statement is challenged is far outweighed by the damage to a candidate who is subject to false or misleading claims, without a comparable means of response.

We conclude that section 10013.5, on its face, does not violate the First Amendment guarantee of free speech.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the California Elections Code.

AGLIANO, Presiding Judge.

PREMO and COTTLE, JJ., concur.