H. Advertisements

 

11-391 Advertisements. (a) Any advertisement that is broadcast, televised, circulated, published, distributed, or otherwise communicated, including by electronic means, shall:

(1) Contain the name and address of the candidate, candidate committee, noncandidate committee, or other person paying for the advertisement;

(2) Contain a notice in a prominent location stating either that:

(A) The advertisement has the approval and authority of the candidate; provided that an advertisement paid for by a candidate, candidate committee, or ballot issue committee does not need to include the notice; or

(B) The advertisement has not been approved by the candidate; and

(3) Not contain false information about the time, date, place, or means of voting.

(b) The fine for violation of this section, if assessed by the commission, shall not exceed $25 for each advertisement that lacks the information required by this section or provides prohibited information, and shall not exceed an aggregate amount of $5,000. [L 2010, c 211, pt of 2; am L 2013, c 112, 10; am L 2014, c 128, 2, 4]

 

Case Notes

 

The disclaimer requirement under subsection (a)(2) did not violate the First Amendment as applied to plaintiff's political advertisements. 786 F.3d 1182 (2015).

Plaintiff noncandidate committee and government contractor had standing to challenge the "advertising" disclaimer requirements in subsection (a)(2)(B); first, even if plaintiff had already published advertisements with the disclaimers, it did not mean that it faced no injury; second, plaintiff sought a declaration that it need not include disclaimers in the future and challenged those statutes facially; third, plaintiff did not have to publish the advertisements without the disclaimers to have standing; finally, a favorable ruling would have enabled plaintiff to publish its advertisements without the disclaimers and fear of violating the law. 872 F. Supp. 2d 1023 (2012).

Plaintiff noncandidate committee and government contractor's as-applied challenge to the disclaimer requirement in subsection (a)(2)(B) and the corresponding definition of "advertisement" in 11-302, which included the "electioneering communications" definitions in 11-341(c), rejected; the court concluded that the plaintiff's advertisements fit within the regulatory "safe harbor"--they were an "advertisement" that was an "electioneering communication" and was the functional equivalent of express advocacy under 11-341(c). 872 F. Supp. 2d 1023 (2012).

Plaintiff noncandidate committee and government contractor's facial challenge to the disclaimer requirement in subsection (a)(2)(B) failed; disclosure requirements could apply to issue advocacy, so long as the exacting scrutiny test was otherwise met, and disclosure and disclaimer requirements--such as requiring a disclaimer under federal law that a communication "was not authorized by any candidate or candidate's committee"--satisfied the exacting scrutiny test; in effect, the U.S. Supreme Court in "Citizens United had effectively disposed of any attack on ... attribution and disclaimer requirements". 872 F. Supp. 2d 1023 (2012).

 

 

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