Recent court decision says what you can and can’t say in your advocacy
Let’s say … and I’m just hypothesizing here … that the state legislature decided to raid a water districts’ coffers in an attempt to bail itself out from ballooning deficits. Or that a group of ratepayers placed an initiative on a local ballot that would rescind a water rate increase. Could you, as a public agency, actively campaign against these moves?
Thanks to a recent court decision, Vargas v. City of Salinas, the answer is yes … but only if you define “actively campaign” correctly.
“Express Advocacy” is still out, so what’s in?
In the Salinas case, a few Salinas residents placed an initiative on the ballot, Measure O, that would have repealed the city’s utility users tax. The city launched a communications effort to let citizens know the devastating effect Measure O would have on city finances. The voters voted down the measure, and the citizens group sued, claiming the city unlawfully interfered and used public funds for political purposes. They sought $250,000 from the city.
In its April ruling, the California Supreme Court maintained the longstanding prohibition on “express advocacy” by public agencies, but ultimately sided with the city’s right to advocate for its interests and rejected the Measure O proponents’ arguments. Before we get to the details, here’s a quick quiz so you can play at being a Supreme Court justice:
Would the Supreme Court have sided with Salinas if the city had:
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The correct answers are:
- No, Salinas couldn’t use billboards, even with a very gentle message, because the court ruled that it’s not OK for a public agency to start using new communications platforms when undertaking advocacy, and Salinas wasn’t previously using billboards.
- No, Salinas couldn’t use this slogan because the court said public agencies must avoid rhetoric that’s inflammatory or argumentative.
- Yes, Salinas certainly was justified in publishing a staff report that showed the factual, negative impact of the measure, discussing it at any number of public hearings, and publicizing the report and the discussion on its pre-existing communications platforms.
In fact, number three is exactly how Salinas faced down the potentially disastrous utility tax initiative, and its effort passed the new Supreme Court standard of being fact-based, not being inflammatory or argumentative, and using already-used communications channels.
But what are “facts” and what constitutes “inflammatory?”
Here’s the rub: What’s fact and what’s opinion? What’s a good, hard-hitting statement and what’s argumentative bullying? On that, you should ask your attorneys – and a communications professional. Often a firm like Laer Pearce & Associates that’s well-seasoned in using communications to sway public opinion can work with an attorney to hammer out language that’s more compelling than what the attorneys would normally produce and approve on their own.
A step you should consider taking now
Because public agencies are limited to using only established communications vehicles in their advocacy efforts, it’s a good time to consider expanding your water district’s outreach tools now – before you need them for advocacy. We are helping many public agencies establish their presence on social media like Facebook and Twitter, and these tools could be very helpful if you ever are in a situation like Salinas was in.
We have developed a quick, inexpensive “Quick Start in Social Media” program that I’d be happy to send to you.
I’m eager to hear your thoughts. Reach me at laer@laer.com or 949/599-1212.
Sincerely,
Laer Pearce, APR
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Tags: ballot initative, california supreme court, campaign, express advocacy, measure o, public agency, salinas, social media, Water
This entry was posted on Wednesday, July 8th, 2009 at 10:35 am and is filed under LP&A, Laer's Latest. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
