September 1, 2015

Who bears the burden in First Amendment cases? California answers: You.

By Wen Fa Attorney

The Center for Competitive Politics is, like Pacific Legal Foundation, a nonprofit dedicated to defending constitutional rights against overreaching government regulation—specifically, First Amendment rights. Because CCP receives donations from supporters in California, it’s required by California law to give the state’s Attorney General a copy of its IRS Form 990, which among other things, includes the names and addresses of many of its donors. For years, CCP gave the Attorney General the public version of the form, with the names and addresses of donors redacted. But last year, Attorney General Kamala Harris put a stop to that, and demanded that CCP turn over the names and addresses of every donor who contributed over $5,000. This wasn’t to serve any particular investigative need, but simply to allow Harris to monitor CCP’s activities for possible lawbreaking.

The demand is absurd, since if there’s any lawbreaking going on, it’s by CCP, not its donors. But more importantly, the demand represents an unconstitutional intrusion on the rights of donors across the country who support groups like CCP and PLF in order to advance their beliefs. In fact, Harris’s new demand affects nonprofits of all causes and ideologies. Although the Supreme Court has allowed these kinds of disclosure requirements when people are supporting political campaigns—on the theory that this promotes the transparency of the electoral process—Harris’s demand goes much further, and applies to groups that—like CCP and PLF—are not involved in politics at all, but just in litigation or in policy analysis and advocacy. Harris’s new rule means that all nonprofits with operations in California, whether it be Planned Parenthood, NRA, the ACLU—or us—can be forced to give up donors’ names and addresses.

If this sounds familiar, that’s because in the 1950s, Alabama officials tried to force the NAACP to reveal the names and addresses of its members. The Supreme Court put an end to that nefarious attempt to scare civil rights activists away from the South. It held 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.” While government could demand such information if it has some reason to suspect lawbreaking, it could not just force the NAACP to hand over names and addresses to enable officials to generally keep an eye on things. The latter would have a “deterrent effect on the free enjoyment of the right to associate,” which would violate the First Amendment.

But when CCP challenged California’s demand in court, the Ninth Circuit chose not to follow the NAACP precedent. It held that CCP had not proven its supporters would face reprisals if their names and addresses were revealed. The problem with that, however, is that the First Amendment never requires people to bear the burden of proving that they should be free to speak. Instead, it’s the government that bears the burden of justifying its intrusions on the freedoms of speech or association. Attorney General Harris’s only explanation for requiring these disclosures was that it would ensure greater “administrative efficiency.” That cannot be enough. As the Supreme Court has said, the Constitution was “designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.”

That’s why PLF, joined by our friends at the Mountain States Legal Foundation, the Goldwater Institute, the Reason Foundation, the Southeastern Legal Foundation, the Atlantic Legal Foundation, and the Individual Rights Foundation filed this brief urging the Court to hear the case. Requiring people or organizations to prove that compelled disclosure will lead to retaliation is not just wrong, it’s also unworkable. Speech can lead to unanticipated retaliation long afterwards. Donors who fear reprisals like those visited upon supporters of Proposition 8, or investigations like the IRS’s scrutiny of Tea Party groups, are likely to be reluctant to associate with those organizations in the future—the classic example of the “chilling of free speech” the First Amendment is supposed to prevent. And contrary to what some have suggested, there’s nothing wrong with anonymous speech. People who express their opinions—or contribute money to organizations that do—might have many reason for wishing to remain anonymous: not just fear of retaliation, but also concern that their identities would distract the public from the actual content of their message. After all, when Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers, to persuade people to ratify the Constitution, they chose to write under a pen name for just that reason.

Obviously, this is an issue that matters a lot to PLF and our allies in terms of their own operations. But it also represents a threat to the constitutional rights of our supporters, rights we are sworn to uphold. The Supreme Court should take up this issue and overrule the Ninth Circuit’s dangerous and unprecedented decision.

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