AB 866 (Yee), a bill that is the first step toward prohibiting candidates from speaking negatively of the homosexual or trans-gendered lifestyles passed the California Assembly Elections Committee on a vote of 4-2 and Appropriations Committee on a vote of 13-5.
This measure adds language to the voluntary Code of Fair Campaign Practices that would prohibit “appeals to negative prejudice” based on sexual orientation or gender identity.
The agreement to these standards are voluntary. However, the standard by which a decision would be made as to what is and is not "an appeal to negative prejudice based on sexual orientation or gender identity" is utterly subjective. As a result, this measure could have profound imposition upon First Amendment rights to both free speech and freedom of religion.
This bill could have a chilling effect on candidates who disagree with this one portion of the code. When put together with AB 215 (Oropeza), which would require to be printed in the official ballot pamphlet whether or not a candidate agreed to abide by the Code..
In their analysis, committee staff points to a 1986 Attorney General opinion that clearly outlines how this violates the rights of political candidates.
In 1986, the state Attorney General issued an opinion on whether a state law or county ordinance which requires ballots to indicate whether candidates for elective office have signed or refused to sign the Code would violate the constitutional guarantee of freedom of speech (69 Op. Atty Gen. Cal. 278). The Attorney General noted that "[a] candidate who did not subscribe to the code could be 'branded' as not agreeing to conduct a 'fair campaign' despite the fact that all campaign speech other than outright falsehoods uttered with actual malice is protected speech under the First Amendment.
Accordingly, there would be a coercive effect to require the candidate to 'voluntarily' sign the code. Yet in signing the code, the candidate would agree to conduct his campaign within the limits of the code and thus restrict his freedom of speech well beyond the area of unprotected speech-that is, the deliberate falsehood." Under this reasoning, it is possible that a court would find that this bill impermissibly coerces candidates to limit their right to free speech.
To make a long story short: The result of this measure would be a government sanctioned, scarlet letter on any candidate for public office who does not support the homosexual or trans-gendered lifestyle.
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Craig DeLuz
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