BILL ANALYSIS Ó
SB 488
Page 1
PROPOSED CONFERENCE REPORT NO. 1 - August 16, 2012
SB 488 (Correa)
As Amended August 15, 2011
2/3 vote
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|SENATE: |28-7 |(May 31, 2011) |ASSEMBLY: |65-12|(August 30, |
| | | | | |2011) |
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SENATE CONFERENCE VOTE : 2-0 ASSEMBLY CONFERENCE VOTE :2-1
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|Ayes:|Lieu, Correa |Ayes:|Bonilla, Fong |
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|-----+-------------------------+-----+--------------------------|
| | |Nays:|Hagman |
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Original Committee Reference: E. & R.
SUMMARY : Requires a slate mailer that represents the position
of a public safety organization to include specified information
about the organization's membership. Prohibits the use of a
logo of a governmental organization or of specified
non-governmental organizations in a slate mailer without the
written consent of the organization. Specifically, the
conference committee amendments add the term "sheriff" to a list
of terms enumerated in the bill that trigger a requirement that
a slate mailer or other mass mailing sent by a slate mailer
organization must disclose the total number of members in the
nongovernmental organization that the slate mailer or mass
mailing represents.
AS PASSED BY THE SENATE , this bill:
1)Required a slate mailer organization to obtain express written
consent from a governmental agency prior to using the logo,
insignia, emblem, or trademark of the agency, or a
substantially similar logo, insignia, emblem, or trademark, in
a slate mailer or other mass mailing, if the use of the item
would reasonably be understood to imply the participation or
endorsement of that agency.
SB 488
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2)Requires a slate mailer organization to obtain express written
consent from a nongovernmental organization that represents
law enforcement, firefighting, emergency medical, or other
public safety personnel, prior to using the logo, insignia,
emblem, or trademark of the organization, or a substantially
similar logo, insignia, emblem, or trademark, in a slate
mailer or other mass mailing, if the use of the item would
reasonably be understood to imply the participation or
endorsement of that organization.
3)Requires a slate mailer organization that sends a slate mailer
or other mass mailing that identifies itself or its source
material as representing a nongovernmental organization with a
name that includes the term "officer," "peace officer,"
"reserve officer," "deputy," "deputy sheriff," "police,"
"highway patrol," "California Highway Patrol," "law
enforcement," "firefighter," "fire marshal," "paramedic,"
"emergency medical technician," "public safety," or any other
term that would reasonably be understood to imply that the
organization is composed of, or affiliated with, law
enforcement, firefighting, emergency medical, or other public
safety personnel, to disclose the total number of members in
the organization identified in the slate mailer or mass
mailing. Requires this disclosure to be included on the
outside of each piece of mail and on at least one of the
inserts in no less than 12-point roman type, in a color or
print that contrasts with the background so as to be easily
legible.
The Assembly amendments :
1)Deleted a requirement that a slate mailer that purported to
represent public safety organizations must include the number
of members working or living within the county in which the
slate mailer or mass mailing was being delivered.
2)Removed the term "officer" from a list of terms enumerated in
the bill that trigger a requirement that a slate mailer or
other mass mailing sent by a slate mailer organization must
disclose the total number of members in the nongovernmental
organization that the slate mailer or mass mailing represents.
FISCAL EFFECT : According to the Assembly Appropriations
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Committee:
1)Minor absorbable costs to the Fair Political Practices
Commission (FPPC) for enforcement related to violations of the
bill's requirements, offset to some extent by fine revenues.
2)Potential minor absorbable costs to the Attorney General and
potential nonreimbursable costs to local prosecutors for
enforcement, offset to some extent by fine revenues.
COMMENTS : According to the author, "ÝS]late mailers can claim
to represent just about any group or cause under the sun. SB
488 is an attempt to shed some light on slate mailers that claim
to represent law enforcement, firefighting, and other public
safety personnel. This bill would require slate mail
organizations to obtain prior consent before using a logo or
other emblem that is identical or substantially similar to one
used by a government agency or other organization that
represents any of these public safety groups. This bill would
also require that a slate mailer purporting to represent one of
these groups disclose the total number of members in their
organization and the number of members working or living within
the county where the slate mailer is sent. Unauthorized use of
these logos in slate mailers can mislead the public as they
attempt to distinguish between legitimate public safety
communications and political advertisements."
This measure could be interpreted as a violation of the United
States and California Constitutions' rights to free speech.
While the right to freedom of speech is not absolute, when a law
burdens core political speech, the restrictions on speech
generally must be "narrowly tailored to serve an overriding
state interest," McIntyre v. Ohio Elections Commission (1995),
514 US 334. The United States Supreme Court has been
particularly wary of laws that compel political speech. In
McIntyre, the United States Supreme Court found that an Ohio law
that prohibited the distribution of anonymous campaign
literature was unconstitutional.
A federal district court cited McIntyre in two separate cases
that raised questions about the constitutionality of California
laws that required certain information to be included on slate
mailers. In light of these decisions, the provisions of this
bill may be susceptible to challenge on the grounds that the
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bill's requirements impermissibly burden the First Amendment
rights of slate mailer organizations and of those candidates and
other individuals who use slate mailers to communicate with
voters. The requirement for certain slate mailers to include a
disclosure of the number of members of the organization sending
the mailer on the mailer itself could be particularly
susceptible to a court challenge.
The provisions of this bill apply only when a slate mailer
organization is using the logo of, or purports to represent,
public safety organizations. Nothing in this bill protects
private organizations that are not public safety organizations
from the misuse of their logos in campaign mailers, nor does
this bill require membership figures to be disclosed on slate
mailers purporting to represent organizations that are not
public safety organizations.
California voters passed an initiative, Proposition 9, in 1974,
that created the FPPC and codified significant restrictions and
prohibitions on candidates, officeholders and lobbyists. That
initiative is commonly known as the Political Reform Act (PRA).
Amendments to the PRA that are not submitted to the voters, such
as those contained in this bill, must further the purposes of
the initiative and require a two-thirds vote of both houses of
the Legislature.
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094
FN: 0004942