I am the attorney who represented supporters of Measure C in a recent lawsuit challenging false and misleading statements in the ballot arguments filed by Measure C’s opponents. I’m writing to clear up some misconceptions about the reason behind the Napa County Superior Court’s order directing that five of those statements be deleted from the opponents’ ballot arguments, and to explain the significance of these changes.
Because of the First Amendment, it is extremely rare for a court to order changes to official ballot arguments. Only in the unusual case where an argument contains statements that are objectively false and misleading can a court order a change. Even where there is a settlement, as in this situation, the court must first find that the statements to be changed are objectively false and misleading.
That is what happened here. Don’t take my word for it. Read the Court’s Order (on page 8) here: bit.ly/2HJiymL. In ordering these changes, the court recites that state law prohibits the court from making any changes to ballot arguments unless there is “clear and convincing proof that that the material in question is false [or] misleading.”
That is what the opponents agreed to, and that is what the court ordered. Indeed, it is only because the court sided with the Yes on C campaign about these statements that the opposition campaign was forced to cover all attorney’s fees related to this matter.
Some of Measure C’s opponents have tried to claim victory in this case because there was a settlement and because one of the six challenged statements was allowed to remain unchanged.
But the settlement required the opponents to change five of the six challenged statements because they were objectively false. The one remaining statement concerned the opponents’ opinion about the alleged effect of Measure C.
Such opinions, even if totally unfounded, are protected by the First Amendment and, therefore, immune from challenge. As the courts have explained, opinions about the effect of an initiative — as opposed to facts — are not subject to proof of their truth or falsity.
Still wondering who is right, and who won this lawsuit? You can read the court order and settlement for yourself at YesOnC.org.
Robert "Perl" Perlmutter