Amicus Brief: The First Amendment Guarantees All Americans’ Right to Privacy

March 2, 2021   •  By IFS Staff   •  
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Washington, DC – The Institute for Free Speech filed an amicus brief yesterday urging the Supreme Court to strike down California’s requirement that charities provide state officials a list of their major donors before asking for financial support. “Private associations enjoy a presumptive right under the First Amendment to withhold the identity of their supporters from the government, for any reason or for no reason at all,” the brief explains.

“California’s demand violates the First Amendment in an unusually harsh way. It asks us to give up our right to association as a precondition for exercising our freedom of speech,” said Institute for Free Speech President David Keating.

The brief warns that “[i]f California can demand that private associations disclose a list of their donors as a condition of raising money in the State, its appetite for information will become virtually limitless. The State could require patrons to list the authors they plan to read before it will issue them a library card. It could require organizers of a peaceful protest to disclose the names, addresses, and cell phone numbers of expected participants. It could demand that newspapers turn over a list of their state government sources before it will issue press credentials for official events.”

When Alabama demanded that the NAACP hand over its membership lists in the 1950s, the Supreme Court made clear that Americans have a right “to pursue their lawful interests privately.” But alarmingly, the Ninth Circuit Court of Appeals recently decided that forced disclosure to the government is not a First Amendment injury. To claim a First Amendment harm, it ruled groups must prove an “actual” injury from threats, harassment, or other harms to itself or its donors. Without such proof, the group’s supporters cannot be shielded from disclosure.

The Institute’s brief argues that, “[t]he Ninth Circuit’s requirement that a plaintiff must produce evidence of concrete injury misunderstands the nature of the associational right. That right presupposes that a private association need not explain its privacy interest to the government. Forcing an organization to give reasons why it or its members or donors want to remain anonymous undermines the very privacy rights that the group or its members seek to protect…

“For more than half a century, this Court has recognized ‘the vital relationship’ between the First Amendment right to associate and the privacy of one’s associations. Throughout our history, private associations have proven to be a powerful engine for speech because they enable their members to support a cause without attaching their own name to it. Particularly where that cause is unpopular, the anonymity that group membership provides is often what enables the speech to take place at all,” reads the brief.

The Institute is urging the Court to strike down California’s requirement for all groups, instead of just those in the two cases being heard. “Case-by-case adjudication can be particularly inappropriate” here, the brief argues, because the cost of fighting state disclosure mandates in court is prohibitive for many groups.

California has failed to demonstrate a need for donor lists and failed to take steps to limit hacking or misuse of this sensitive information. The risk that its demand will chill constitutionally protected speech is “as obvious as it is substantial,” the brief explains.

The Institute for Free Speech was the first to challenge the constitutionality of California’s mandate, which applies to all nonprofits that raise money in the state. Our case, which argues the state’s demand is unconstitutional regardless of whether a group can prove threats to its donors, is still pending. The Supreme Court will hear the cases of two groups whose supporters felt threatened by the mandate, Americans for Prosperity Foundation and the Thomas More Law Center.

The cases are Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra. To read the Institute’s brief in support of the petitioners, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

IFS Staff

https://www.ifs.org/author/ccp-staff/

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