May 16, 2021

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‘Donor Disclosure’ Chills Free Speech

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The Supreme Court hears oral arguments on Monday in a case that raises a vitally important First Amendment question: Do Americans have the right to keep their charitable donations private?

The case, Americans for Prosperity Foundation v. Rodriquez, should be easy. Around 2010, California’s attorney general began quietly demanding that any charity soliciting funds provide the state with a list of its major contributors. The most populous and wealthiest state in the union was amassing a comprehensive database of donors to American charities.

When several nonprofit groups challenged this practice in 2014, then-Attorney General

Kamala Harris

argued that she needed the information to streamline investigations. She promised that individuals’ confidentiality was carefully protected. Neither assertion was true. When the matter came to trial in 2016, state officials conceded that they hardly ever used their database for investigations. And the challengers unearthed tens of thousands of confidential documents, including contributor lists, left unsecured on the attorney general’s website.

Nevertheless, the Ninth U.S. Circuit Court of Appeals upheld the practice. It believed California’s protestations that, this time, privacy would be protected. And it held that unless supporters were made public, the First Amendment wasn’t violated. The Supreme Court agreed in January to hear an appeal.

At stake is an unbroken line of precedent dating to the civil-rights era. In the most famous of those cases, NAACP v. Alabama (1958), the organization challenged the state’s attempt to destroy the organization by unmasking its financial supporters. That’s not what Alabama said it was doing, of course; it claimed the NAACP might be involved in “intrastate business” and hid its racist agenda behind concern for its “foreign corporation registration statute.” The Supreme Court wasn’t fooled. In a unanimous opinion written by Justice

John Marshall Harlan II,

it reminded Alabama that “compelled disclosure of affiliation with groups” infringed on freedom of association. The court explicitly held that for contributors the default rule under the Constitution is “privacy of association and belief.”

California’s policy would turn that rule on its head. The attorney general’s pretext for warehousing contributors’ identities is so thin that nearly any government would be able to make similar demands. One can imagine how such databases could be weaponized as social mores change. Consider how a similar policy might have been abused during, say, the national debate over same-sex marriage.

But even if this case is straightforward, no Supreme Court case occurs in a vacuum. This one comes amid intense polarization and hand-wringing over “dark money”—a catchy slogan that eludes definition and is used more often to avoid debate than engage in it. There is pressure on the justices to further cramp private association.

Some advocacy groups have for years wanted nonprofit contributors to be disclosed publicly. The legendary First Amendment lawyer

Floyd Abrams

has joined them in a brief on behalf of his eponymous institute at Yale Law School, calling for the compulsory public disclosure of donors to any group discussing “matters of public concern.” He argues that the public has a “First Amendment interest” in such information. While Mr. Abrams has done more for the First Amendment than almost anyone alive, he is mistaken.

Take the most obvious problem. The First Amendment is a protection of the people against the government; it begins with the words “Congress shall make no law.” That’s why the courts have consistently stated that the First Amendment only bars state action, not the decisions of private parties. It is incoherent to assert a First Amendment right to have the government force someone else to provide you with information.

Those making this argument are careful to call forced disclosure a First Amendment interest, not a First Amendment right. But that gives away the game. The First Amendment protects rights, not interests. And nearly any group can be said to discuss “public issues.” Any distinction between speech about “public” and “nonpublic” matters would be hopelessly vague and dangerously susceptible to biased enforcement. And it would be a radical departure from precedent. The court has never declared a broad interest in public donor disclosure unless the resources were spent to influence elections or lawmakers’ positions on legislative issues. Americans are permitted to debate policy without submitting to government surveillance.

The brief argues that only “large donors” to organizations “seeking to influence” public policy need be disclosed. But that’s the same rhetoric used in campaign-finance law, and the federal disclosure threshold is only $200. There is little reason to believe that officials unhindered by the Constitution would resist the temptation to develop public databases of nonprofits’ supporters, or that the public would refrain from shaming or harassing contributors to disfavored groups.

As the court considers this case, it must be vigilant against such seemingly innocuous calls for disclosure. Individuals can be vulnerable, especially in unsettled times. That is why, since the republic’s founding, they have pooled their resources to advocate for change without fear of retribution. We should honor, not undermine, that tradition.

Mr. Dickerson is vice chairman of the Federal Election Commission and a former legal director of the Institute for Free Speech, which is also challenging California’s policy.

Wonder Land: More than 100 corporation leaders have done a Davos by laptop to vilify Republicans and validate their progressive credentials. Image: Getty Images/iStock Photo

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2021-04-25 16:52:00

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