Supreme Court Reaffirms First Amendment Protection for Associational Privacy Part 2

The Supreme Court reaffirmed strong First Amendment protection against voyeuristic government compulsory disclosure rules last week in Americans for Prosperity Foundation v. Bonta. While we wrote about this last week, this is an important decision that deserves a second look. The Court ruled that California cannot require non-profit religious, charitable and civic organizations to disclose their donors to the state as a condition of soliciting contributions from Californians. The California requirement was started by then-Attorney General Kamala Harris. The Court’s opinion is a rebuke to the now Vice President.

For decades, liberals and Democrats have turned public exposure of donors to religious, civic and political organizations into a strategic cudgel to “defund the Right,” cancel people out of step with liberal orthodoxy, and drive conservatives from the public square. Kimberley Strassel called out Senator Sheldon Whitehouse and Senator Dick Durbin as primary culprits who misuse their official positions to harass, intimidate and retaliate against conservatives. Ironically, many liberal organizations filed amicus briefs with the Supreme Court urging it to protect their associational privacy and the Court noted the diverse range of organizations asking for First Amendment protection. The Court’s decision no doubt will protect the free speech, assembly, and conscience rights of all Americans.

Institute for Free Speech Chairman and Founder Bradley A. Smith noted:

The Court has taken a critical step towards protecting Americans’ right to support nonprofit causes without fear of official or public retaliation and harassment for their beliefs. California’s careless warehousing of sensitive nonprofit supporter lists resulted in public leaks, putting the safety of civically engaged Americans at risk. The Court’s strong opinion makes clear that the state’s dragnet was not just irresponsible, it was unconstitutional. Its decision reaffirms the Court’s vital precedents protecting citizen privacy and gives real teeth to the legal standard under which many laws harming speech and assembly rights are reviewed by courts.

As the Committee for Justice pointed out, protecting the anonymity of speech goes back to the nation's founding:

It is important to remember that, despite the use of "dark money" as an invective these days, America has a long tradition of protecting anonymity under the First Amendment, dating back to the anonymous publication of the Federalist Papers and Thomas Paine's Common Sense. And, with racial issues at the forefront of the current public debate, it is fitting that today's decision was based on the Supreme Court's 1958 precedent in NAACP v. Alabama, in which the Court unanimously ruled that the First Amendment protected the NAACP from having to disclose its membership list to the state of Alabama.

The Supreme Court’s decision likely means that many overbroad and voyeuristic public exposure provisions like the ones in H.R.1/S.1 are dead letters — they would be ruled unconstitutional and void from passage. Those bills threaten to expose the names and identities of Americans who donate funds to groups that discuss public policy. Representatives and Senators should heed the Supreme Court’s warning: do not tread on the First Amendment rights of American citizens.