This piece originally appeared in Asbury Park Press on November 14, 2019.
Free speech recently scored big victories in federal court against laws passed in New York and New Jersey that would have kneecapped nonprofits. The two laws set up a maze of rules for any group advocating any public policy and invaded the privacy of their supporters.
On their way to becoming law, both bills drew widespread condemnation from liberal and conservative groups. That’s because both laws ventured into unprecedented territory far beyond any Supreme Court decisions, which permit regulation only of electioneering and direct lobbying. The two laws were written so vaguely and broadly that it was impossible to understand what speech fell under the law and what did not. Even factual information on how lawmakers voted on bills or speech advocating the importance of clean water or fair taxes appeared subject to regulation.
The courts said each state went too far. Judges either struck down or set aside each law as unconstitutional.
“Most constitutionally troubling … is [that the law] brings communications of purely factual political information into a disclosure and financial-reporting regime historically limited to electioneering,” Judge Brian R. Martinotti wrote about New Jersey’s law.
Judge Denise Cote described New York’s law as requiring disclosure whenever a group “engages in pure issue advocacy…. And that position need only ‘relat[e] to . . . potential legislation.’” Virtually any topic of public importance could be a subject of “potential legislation.”
And lest you think the plaintiffs, which included the ACLU Foundation and Americans for Prosperity, got lucky because conservative judges reviewed the laws, you’d be wrong. President Obama appointed Judge Martinotti and President Clinton appointed Judge Cote.
Some may ask what privacy has to do with free speech. Yet the two are inextricably linked. The Supreme Court has long recognized that the Constitution guarantees every American the right “to pursue their lawful private interests privately and to associate freely with others in so doing.” Government efforts to monitor and surveil who you speak to, or what organizations you join, undermine our freedom to speak and associate as we wish.
The right to private association is rarely discussed, but its impact is easily felt. Groups like the ACLU, the NAACP, the NRA and thousands of others flourish because they and their supporters are safe from the prying eyes of government. Privacy is especially important for groups that criticize government or express controversial ideas. Indeed, modern privacy protections for advocacy date back to civil rights era cases in which racist governments sought member lists to groups like the NAACP.
Courts have carved a narrow exception to the right of private association for donations to election campaigns. Dating back to the 1970s, candidates, parties, and political action committees have been required to identify their donors. These disclosure laws have been upheld as constitutional because they inform voters and help to prevent corruption. Groups that do not tell people how to vote, however, retain a strong right to privacy.
Unfortunately, that privacy is under attack. A nationwide coalition of politicians, regulators, and activists now seek to force nonpartisan and nonpolitical groups to expose their supporters. These proposals have appeared in Congress in the form of the DISCLOSE Act and H.R. 1. State attorneys general in California and New York have also tried to get their hands on nonprofit member lists. Dozens of state legislatures and regulatory bodies have considered proposals to force nonprofits to public identify their supporters.
Groups advocating for their causes know firsthand that their ability to speak on behalf of their members depends on privacy. Some supporters may choose not to give if their contributions are made public. Others will face an increased risk of harassment or other forms of retaliation. Indeed, Judge Martinotti noted the danger of disclosure in “a climate marked by the so-called cancel or call-out culture that has resulted in people losing employment, being ejected or driven out of restaurants while eating their meals; and where the Internet removes any geographic barriers to cyber harassment of others.”
Even if risks to donor safety could be assuaged, these laws impose significant recordkeeping and reporting burdens on nonprofits, wasting their funds. Small organizations, or ones that rely on volunteers, may struggle to understand the law. Meanwhile, wealthy and well-established groups can always hire expensive lawyers to work through the rules.
As legislatures and administrative bodies fight harder than ever to expose the identities of nonprofit donors, courts must step up to the challenge of protecting First Amendment rights. Groups on the left and right are calling foul. These rulings suggest that the judiciary hears them.