November 19, 2016

Sacramento city councilman reminded that the Constitution protects freedom of association

By Caleb R. Trotter Attorney

There was a small dust-up in the Sacramento press this week. It seems that Sacramento City Councilman Jay Schenirer has grown weary of a watchdog organization (Eye on Sacramento) that routinely challenges proposed ordinances and policies, and generally serves as a vocal check on city government. Councilman Schenirer requested the group provide him with a list of its members, a detailed accounting of its funds and donors, and its organizational bylaws—all in the name of “transparency.”

In response, Eye on Sacramento threatened to sue the Councilman and the city unless the requests for information stop. Calling the Councilman’s efforts retaliation for the group’s activism, the group warned that the First Amendment protects the group’s members and donors from disclosure, and from having their speech chilled. The group is right, and Councilman Schenirer was wise to drop his request after the threat of litigation arose.

As it happens, cases of forced disclosure of non-profit donors and the resulting chilling of speech and association is nothing new in California. Two recent federal lawsuits highlight the issues and the problems.

In 2014, in Center for Competitive Politics v. Harris, a non-profit organization challenged California Attorney General (now Senator-elect) Kamala Harris’ policy that required non-profits soliciting funds in California to provide the Attorney General with a document listing the names and information of all donors giving the organization more than $5,000 in a year. Since the Attorney General’s office routinely discloses that private information to the public “by mistake,” and since the United States Supreme Court held long ago that “inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly when a group espouses dissident beliefs,” the group urged the court to declare the policy unconstitutional. Unfortunately, the Ninth Circuit Court of Appeals disagreed and declared that the group must prove that its supporters would suffer some harm if they were revealed. As we previously explained, that holding erroneously flips the burden of proof and is grossly impractical.

Fortunately, in a more recent case currently pending in the Ninth Circuit—Americans for Prosperity Foundation v. Harris—a different non-profit organization challenged the same Kamala Harris policy, but this time the district court held that as-applied to the group, the policy is unconstitutional under the First Amendment. Because the Attorney General failed to provide a sufficiently important governmental interest served by the forced disclosure, and since the disclosure requirement was more burdensome on the group’s First Amendment rights than necessary, the court struck it down. Furthermore, since the group could show that its members, supporters, and donors suffer public threats, harassment, and retaliation once their support is made public, the court also struck down the policy to prevent any further chilling of the group’s First Amendment rights.

At the core of these controversies is a misunderstanding of (or disagreement with) the core First Amendment values of anonymous speech and association among some government officials. The right to privately associate with others and speak anonymously has proven time and again to be necessary to voice dissenting views and challenge the power of the government. When government can force the disclosure of those supporting various groups and causes, then many people will stop providing those groups and causes with their support. As a result, that creates an environment in which only the government and its cronies benefit.

Hopefully Councilman Schenirer has learned his lesson this time, and hopefully all government officials take note that when they attempt to silence dissenting views, there are groups willing to take them to court to litigate in protection of our cherished First Amendment rights.

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