The courts are an uncertain bulwark against speech chilling regulation. The Supreme Court just refused to consider a nonprofit’s challenge to a Delaware law that required disclosure of the nonprofit’s donors as the price for speaking. Justice Thomas authored a rare dissent: “Given the specter of these First Amendment harms, a State’s purported interest in disclosure cannot justify revealing the identities of an organization’s otherwise anonymous donors.”
For most citizens, the only means to participate effectively in public debate other than voting is to join financially with others. The First Amendment protects the privacy of that association. Where prosecutors and regulators wield the cudgel of “disclosure” with the effect — and the purpose — of chilling those with whom they disagree, they harm public discourse and violate the First Amendment.