Amicus Briefs: Americans for Prosperity Foundation v. Rob Bonta, Attorney General of California
AMICUS BRIEFS SUMMARY
The question presented in this case was whether the holding of NAACP v. Alabama ex rel. Patterson would be applied to modern state attorneys-general who compel disclosure of supporter lists of unpopular organizations without articulating a substantial state interest in obtaining the information. Would this hard-won, bedrock civil rights era precedent still protect the vital relationship between the freedom to associate and privacy in one’s associations?
In a win for NCLA, on July 1, 2021, the U.S. Supreme Court recognized the blatant abuse of administrative power by a series of California attorneys-general. Chief Justice Roberts, writing for a 6-3 Court divided along ideological lines, held that the California Attorney General’s donor-disclosure policy for nonprofits—which began under Kamala Harris and continued under Xavier Becerra—was facially unconstitutional because it burdened donors’ First Amendment Rights and was not narrowly tailored to an important government interest.
NCLA filed three amicus briefs along the way in support of the petitioners in this case to defend the associational freedom and anonymity principles laid out in NAACP.
Join the new civil liberties movement. Protect Americans from the Administrative State!
COURT: 1) U.S. Court of Appeals for the Ninth Circuit; 2) U.S. Supreme Court; 3) U.S. Supreme Court
DOCUMENT: 1) Nos. 16-55727 & 16-55786 ; 2) Nos. 19-251, 19-255; 3) Nos. 19-251, 19-255
COUNSEL FOR AMICUS CURIAE: 1) Philip Hamburger, Mark Chenoweth, Michael DeGrandis, Peggy Little; 2) Philip Hamburger, Mark Chenoweth, Michael DeGrandis, Peggy Little; 3) Philip Hamburger, Mark Chenoweth, Michael DeGrandis, Peggy Little, Adi Dynar
FILED: October 5, 2018; September 25, 2019; March 1, 2021
CASE DOCUMENTS
July 1, 2021 | Opinion of the U.S. Supreme Court
March 1, 2021 | Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of the Petitioners
November 24, 2020 | Brief for the United States as Amicus Curiae
September 25, 2019 | Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of the Petitioners
October 5, 2018 | Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of the Petition for Rehearing En Banc
PRESS RELEASES
July 1, 2021 | SCOTUS Upholds Civil Rights Precedent Securing Free Association Rights in NCLA’s Sixth Amicus Win
Washington, DC (July 1, 2021) – In an early present to celebrate Independence Day, the U.S. Supreme Court recognized the blatant abuse of administrative power by a series of California attorneys-general in Americans for Prosperity Foundation v. Robert Bonta. Chief Justice Roberts, writing for a 6-3 Court divided along ideological lines, held that the California Attorney General’s donor-disclosure policy for nonprofits—which began under Kamala Harris and continued under Xavier Becerra—is facially unconstitutional because it burdens donors’ First Amendment Rights and is not narrowly tailored to an important government interest.
Starting in 2010, California’s attorney-general imposed a new, binding obligation on charities to turn over a list of their major supporters—without authority from the state legislature. There “was not ‘a single concrete instance in which pre-investigation collection of [donor information] did anything to advance the Attorney General’s investigative, regulatory, or enforcement efforts,’” said Roberts in the majority opinion. “In reality, then, California’s interest is less in investigating fraud and more in ease of administration. This interest, however, cannot justify the disclosure requirement.”
Chief Justice Roberts also acknowledged the gravity of the privacy concerns demonstrated by the filings of scores of organizations as amici curiae spanning the ideological spectrum. Today’s Supreme Court ruling reaffirms our nation’s commitment to the bedrock civil rights legacy established in the landmark case NAACP v. Alabama ex rel. Patterson, which protects First Amendment rights to free association and privacy and anonymity in one’s associations.
Requiring these groups to turn over a list of their major supporters to the California Attorney General for their various charitable endeavors would violate the First Amendment of the United States Constitution. Further, it would erode the Constitution’s structural provisions and guarantees of rights that safeguard minorities and unpopular minority opinions. The First Amendment does far more than protect dissident organizations from direct government coercion. It also stops the government from enabling the bullying and intimidation wrought by private citizens against others who anonymously join together to express unpopular views through an organization.
The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed three amicus briefs along the way in support of the petitioners in this case to defend the associational freedom and anonymity principles laid out in NAACP. With today’s victory, NCLA has earned an unblemished 6-0 record for amicus curiae briefs filed against the Administrative State for the Supreme Court’s October 2020 term.
NCLA released the following statements:
“It is hard to overstate how much a different decision in this case would have chilled the cause of freedom. NCLA is relieved that the Supreme Court agreed with us that NAACP v. Alabama’s holding remains as good an idea for minority opinions threatened by California’s attorney-general today as it was for minorities threatened by Alabama’s attorney-general in 1958. Today’s powerful officials are picking different targets, but thankfully the same Constitution protects associational rights across the political and cultural spectrum.”
— Mark Chenoweth, Executive Director and General Counsel, NCLA
“It’s heartening to know that NAACP v. Alabama’s legacy as a cornerstone of the civil rights movement continues. The Supreme Court’s rebuke of California’s state-sponsored cancel culture echoed NCLA’s argument: minority viewpoints and interests must have refuge from ridicule and persecution, especially in today’s polarized society. AFPF v. Bonta is a refuge that will protect our freedom to associate and our right to privacy in our associations for generations to come.”
— Michael DeGrandis, Senior Litigation Counsel, NCLA
“I am pleased that the Court reaffirmed NAACP v. Alabama and struck down California’s donor-disclosure practice. The Court also sharpened the teeth of the exacting-scrutiny standard.”
— Adi Dynar, Litigation Counsel, NCLA
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
March 1, 2021 | NCLA Urges Supreme Court to Protect Landmark Civil Rights Precedent Against “Cancel Culture”
Washington, DC (March 1, 2021) — The landmark 1958 case NAACP v. Alabama ex rel. Patterson was undoubtedly one of the most significant U.S. Supreme Court decisions of the civil rights era. More than 60 years later, it is once again front and center as the highest court in the land prepares to hear oral arguments in Americans for Prosperity Foundation v. Xavier Becerra and Thomas More Law Center v. Xavier Becerra. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed an amicus brief today in support of Petitioners because the legacy of this irreplaceable civil rights-era precedent is being threatened. California Attorney General Xavier Becerra has imposed a new, binding obligation on charities to turn over a list of their major supporters—without authority from the state legislature.
NAACP v. Alabama should be celebrated—not discarded. NCLA is concerned that the Ninth Circuit’s earlier decision in AFP v. Becerra eviscerates the Supreme Court’s landmark Freedom of Association precedent. Back then, John Patterson, the Attorney General of Alabama, had demanded membership lists from the local NAACP chapter. The Supreme Court ultimately ruled that the NAACP did not have to divulge its members to the attorney general because having to do so could deter people from joining the organization.
Resuscitating the once-settled dispute, Becerra has violated the First Amendment of the U.S. Constitution as applied to the states under the Fourteenth Amendment by requiring charities to turn over a list of their major supporters. His demand has undermined the rights of speech and associational freedom, and it has impinged on the philanthropic freedom of supporters who want to give anonymously. Furthermore, Becerra’s actions have blatantly shifted lawmaking from elected legislators to California’s executive branch. NCLA is asking the Supreme Court to reverse the Ninth Circuit’s decision and preserve constitutional protections for political minorities against today’s cancel culture.
NCLA released the following statements:
“The Attorney General’s demand that charities turn over the names of their top donors is nothing more than state-sponsored cancel culture. The Constitution guarantees not only the right to associate but also privacy in one’s associations. In an increasingly polarized environment, people across the political spectrum face harassment, loss of employment, and even violence because of their viewpoints and the people with whom they associate. NAACP v. Alabama recognized the chilling effect—and danger—of requiring unpopular groups to disclose their supporters. The Court must reaffirm this cornerstone decision of the civil rights era.”
— Michael DeGrandis, Senior Litigation Counsel, NCLA
“A cadre of state government officials set out to cancel Martin Luther King Jr.’s civil rights movement in the 1950s. The Supreme Court stopped one important aspect of those efforts in 1958. Fast forward to current times, and the California attorney general wants to aid and abet the reigning cancel culture. The Supreme Court should instead reaffirm America’s commitment to the First Amendment.”
— Adi Dynar, Litigation Counsel, NCLA
For more information about this case visit here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
September 25, 2019 | NCLA Asks U.S. Supreme Court to Uphold Landmark Civil Rights Precedent
Washington, D.C. – Today, the New Civil Liberties Alliance filed an amicus brief supporting two Writs of Certiorari to the U.S. Supreme Court in Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra. The Petitioners in these related cases are asking the Supreme Court to reverse the U.S. Court of Appeals for the Ninth Circuit and protect First Amendment rights to free speech, free association, and privacy in one’s associations. NCLA is supporting these writs, because it is concerned that the Ninth Circuit decision below eviscerates the Supreme Court’s landmark 1958 precedent, NAACP v. Alabama ex rel. Patterson.
John Patterson, the attorney-general of Alabama, had demanded membership lists from the local NAACP chapter. The Supreme Court ultimately ruled that the NAACP did not have to divulge its members to the attorney-general because having to do so could deter people from joining the organization. In a parallel bit of modern intimidation, California’s attorney general Xavier Becerra, without authority from any state law, has invented a new, binding obligation on charities that solicit donations in his state. A dictate from his office demands that 501(c)(3) charitable organizations turn over Form 990, Schedule B from their federal tax returns, which is the schedule that lists all of an organization’s largest supporters, to his office.
The attorney-general lacks the power to require groups to turn over their supporter lists when they solicit for their various charitable endeavors. In fact, enforcing his ad hoc rule violates both the California Constitution and the United States Constitution. The Supreme Court should be alarmed that the Attorney General is so openly flouting—and the Ninth Circuit is so blatantly ignoring—the constitutional protections for privacy and associational freedom recognized by the Supreme Court in NAACP v. Alabama ex rel. Patterson.
NCLA believes the Ninth Circuit’s opinion offers little protection to unpopular minorities and erodes constitutional protections for political minorities. It not only undermines the rights of speech and associational freedom; it also impinges on the religious freedom of supporters who want to give anonymously in accordance with the teachings of their religion. This Court should grant the Petitions because the Ninth Circuit misapplied this Court’s long-standing civil rights precedent.
NCLA released the following statements:
“All Americans should be alarmed by the California Attorney General’s barefaced flouting of the constitutional protections for privacy and associational freedom. The Supreme Court acknowledged these protections 60 years ago in NAACP v. Alabama—one of the most significant decisions of the civil rights era. The Court should make it abundantly clear that NAACP is still the definitive authority on First Amendment rights and confirm once and for all that there is a vital, constitutionally protected relationship between the freedom to associate and privacy in one’s associations.”—Michael DeGrandis, NCLA Senior Litigation Counsel
“If charitable supporters are concerned that a charity is defrauding them, they can certainly make the state attorney-general aware of it and tell him how much they contributed to the charity in question. But for the attorney-general to demand supporter lists from ALL charitable organizations—without any suspicion of fraud—is overkill. A drastic action like throwing out the landmark civil rights precedent of NAACP v. Alabama raises obvious questions about the attorney general’s real intentions.”
—Mark Chenoweth, NCLA Executive Director and General Counsel
ABOUT NCLA
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
April 4, 2019 | NCLA Chides U.S. Ninth Circuit Court for Gutting a 60-Year-Old Bedrock Civil Rights Precedent
Washington, D.C. — The en banc Ninth Circuit Court of Appeals declined to rehear Americans for Prosperity Foundation v. Becerra late last week, dismissing one of the most important legacies of the Civil Rights Movement in the process.
In October 2018, the New Civil Liberties Alliance (NCLA) filed a brief as amicus curiae in AFPF v. Becerra, asking the entire Ninth Circuit to rehear the case to vindicate civil liberties protected by the First Amendment, including the freedom of association. The Ninth Circuit denied rehearing, though the dissenting judges agreed with much of NCLA’s argument.
NCLA’s brief asserted that the California Attorney General’s demand for disclosure of nonprofit donor lists is unconstitutional under the controlling precedent set by the Supreme Court’s unanimous 1958 NAACP v. Alabama decision. That is the famous case in which the Supreme Court rejected the Attorney General of Alabama’s demand for the NAACP’s membership list.
NCLA argued that “the NAACP Court applied a straightforward and rigorous test that simply asks whether an organization’s members have previously encountered ‘public hostility’ when their membership has been revealed . . . . If so, then the state must show that disclosure has a ‘substantial bearing’ on the state’s asserted interest in obtaining the list of names.”
This heightened scrutiny for compelled membership disclosure is essential to protecting liberty because, as the NAACP Court said, the “[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
The AFPF dissenters took up this theme, explaining that “[c]ontroversial groups often face threats, public hostility, and economic reprisals if the government compels the organization to disclose its member and contributor list.” Thus, “[t]he Supreme Court has long recognized this danger and held that such compelled disclosures can violate the First Amendment right to association.” The dissent called for application of the Supreme Court’s “clear [NAACP] test for cases like this one.”
Instead of applying NAACP’s heightened scrutiny, the Ninth Circuit panel denied rehearing because it incorrectly applied a lesser standard. In so doing, the dissent concluded that the panel’s “watered-down standard” has the practical effect of allowing the government to “put the First Amendment associational rights of members and contributors at risk for a list of names it does not need, so long as it promises to do better in the future to avoid public disclosure of the names.”
“This decision is a travesty of justice and marks a dark day for civil rights in modern America. Attorney General Becerra—just like the Attorney General of Alabama in the 1950s—has no legitimate need for the donor lists of every nonprofit organization. He is creating a problem, not solving one. By condoning Becerra’s fishing expedition, the Ninth Circuit has turned back the clock to the pre-civil rights era when dissident organizations labored at the mercy and sufferance of hostile state attorneys-general. This poorly reasoned decision has set the standard for protecting Americans’ freedom of association so low that any state attorney general can simply offer self-serving assertions about the needs of law enforcement to nullify citizens’ demonstrable concerns regarding the threats and reprisals they face for expressing their unpopular beliefs.” – Mark Chenoweth, NCLA Executive Director and General Counsel
ABOUT NCLA
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.
October 5, 2018 | NCLA: The U.S. Ninth Circuit Court of Appeals Must Not Allow California’s Attorney General to Turn Back the Clock on Civil Rights in America
Washington, D.C. — The New Civil Liberties Alliance (NCLA) today filed an amicus curiae brief asking the entire U.S. Court of Appeals for the Ninth Circuit to rehear the recent decision in Americans for Prosperity Foundation v. Becerra concerning the privacy of donors to nonprofit organizations.
Earlier this year a three-judge panel of the court unanimously reversed a 2016 district court order that had permanently enjoined the state’s rules requiring charities that solicit contributions in California to file their donor lists with the state attorney general. The panel held that such disclosure is in the state’s interest to “police” charitable fraud.
NCLA believes instead that a unanimous U.S. Supreme Court got this issue right in the landmark 1958 civil rights-era case NAACP v. Alabama ex rel. Patterson. That is the case that famously prevented the NAACP from having to turn over its membership lists to the state attorney general of Alabama.
So too, here, nonprofits that solicit in California should not have to turn over their membership or donor lists on the say-so of the state attorney-general. Such suspicionless disclosures fly in the face of the fundamental rights to associate privately, conduct lawful activities freely, and contribute to organizations anonymously under the First Amendment to the Constitution that NAACP v. Alabama recognized.
In addition to NCLA’s concern about the constitutional rights at stake in this case, the organization is also troubled that the state attorney-general has invented a new, binding obligation on charities without any legislative action. The panel decision of the Ninth Circuit is a misguided assault on philanthropic freedom that could have negative widespread consequences nationwide.
NCLA Executive Director, Mark Chenoweth:
“The U.S. Supreme Court has long recognized that anonymity can be indispensable to preservation of freedom of association, particularly where a group espouses unpopular beliefs. If the Ninth Circuit lets a state attorney-general ‘insist on a list’ and seek disclosure of members or donors via administrative fiat, it will turn back the clock to the pre-civil rights era when dissident organizations labored at the mercy and sufferance of hostile state attorneys-general.”
ABOUT NCLA
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.
OPINION
Will the Ninth Circuit Gut a Landmark Civil Rights Case? | Townhall
“Groucho Marx once resigned membership from the Friars Club quipping, “I don’t want to belong to any club that will accept me as a member.” Imagine Groucho’s dismay had the club been compelled to disclose his membership to the government! That is exactly what California’s attorney general is doing by requiring 501(c)(3) charities to divulge their donor or member lists—and the Ninth Circuit appears poised to let him get away with it.
Americans have long banded together to support causes they hold dear, donating their time, talent, and treasure to charities. The attorney general’s demand jeopardizes such activities, along with members’ personal and professional welfare.
Regrettably, a Ninth Circuit panel decided that the attorney general’s actions did not violate the First Amendment. That decision directly conflicts with landmark precedent of the United States Supreme Court—NAACP v. Alabama. To defend freedoms of association and speech in California, the New Civil Liberties Alliance filed an amicus brief asking the full Ninth Circuit to rehear Americans for Prosperity Foundation v. Becerra and uphold NAACP v. Alabama.
In the 1950s, the Alabama attorney general demanded production of the NAACP’s membership list, supposedly to investigate possible NAACP violations of a corporation statute. The NAACP did not want to disclose its membership list, believing the reason for the demand was a pretext. The NAACP Court’s straightforward test asked whether an organization’s members have previously encountered “public hostility” by the mere fact of their membership. If so, the state must show that disclosure has a “substantial bearing” on the state’s asserted interest in obtaining the list.
The NAACP Court understood that disclosing an organization’s members to the government “may induce members to withdraw from the Association and dissuade others from joining it.” The Court held that because NAACP members tragically faced job loss, beatings, and even death, disclosure would have a chilling effect on speech by dissuading people from joining.
Despite the Ninth Circuit’s acknowledgement that AFPF members “undeniably … have been subjected to threats, harassment or economic reprisals[,]” the court wrongly held that this evidence was not enough to prove that the attorney general’s disclosure demand “will impose significant First Amendment burdens.” Yet, California itself has seen its share of high-profile examples of donors—like Mozilla’s CEO—being hounded out of their jobs.
The AFPF court effectively limited NAACP v. Alabama’s holding to only cases of violent threats. But if violence is the line in the sand, is it not already too late to protect First Amendment rights? As the NAACP Court recognized, non-violent harassment is just as capable of chilling First Amendment freedoms as physical force. Besides, where does being shouted down in public (a common coercive tactic) fall on the continuum of intimidation, and when does it cross the line to fear for personal safety?
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Written by Michael DeGrandis
BLOGS
February 26, 2021 | Cancel Culture on Trial by Peggy Little
An important case will be heard this term at the Supreme Court out of the Ninth Circuit—and the stakes could not be higher. Americans for Prosperity Foundation v. Becerra challenges a California Office of Attorney General’s lawless demand for non-profits’ donor lists that displays a shocking determination to eviscerate one of the landmark civil rights precedents of the 1950s, NAACP v. Alabama. The Supreme Court should stop in its tracks this shameful effort to deploy government regulation in service of cancel culture.
Amazingly lawless
In 2010, then-Attorney General of California Kamala Harris claimed a license to compel non-profit organizations registered with the state to produce their IRS Schedule B list of major donors. No law was passed by the California legislature empowering her to do this, nor did any agency such as the California Department of Taxation lawfully promulgate any rule or regulation justifying such compelled disclosure on pain of sanction at the time. The Attorney General just announced by diktat that non-profits would henceforth be compelled to disclose their donors to the state.
This lawless diktat was part of a nationwide movement that mobilized over the last decade or so to ferret out donor lists from non-profit so that the government can keep permanent track of donations by individuals or entities across the country. States that understood that such disclosures could only be compelled by law were able to readily defeat these initiatives through honest legislative debate that protected the non-profits from such compelled disclosure and protected their constituents’ donor privacy intact. Unfortunately, California—and apparently its federal courts—operate under a different Constitution that the court appears to believe permits this to be done outside the law in violation of its citizens’ freedom of association.
An Ugly History
In the late 1950s, the Attorney General of Alabama demanded that the NAACP of Alabama produce its membership lists and held it in contempt when it refused. The NAACP challenged the state’s unilateral demand at the US Supreme Court, which unanimously held that Alabama’s attempt to secure the membership lists violated the NAACP members’ First Amendment associational rights. In one of its finest hours, the Court acknowledged the “vital relationship between freedom to associate and privacy in one’s associations,” and refused the attorney generals’ obviously pretextual excuses for such a lawless demand.
In analyzing the Alabama state attorney general’s demand for NAACP’s member list, the Court applied a straightforward test that asks whether an organization’s members have previously encountered “public hostility” when their membership was revealed. If an organization shows that one or more of its supporters had encountered “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility,” that alone was enough to establish that disclosing the supporter lists to the state “may induce members to withdraw from the Association and dissuade others from joining it.” As the Court explained:
Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.
If such a showing can be made, then Alabama must show that disclosure has a “substantial bearing” on the State’s asserted interest in obtaining the list of names. Alabama could not make that case then; California cannot make that case now.
For 60 years this Supreme Court decision recognized that Americans must be free to associate, and to do so privately in order not to chill Americans, especially those who hold dissident beliefs, from joining, supporting, and donating to those with whom they share beliefs.
Proposition 8 and Occupy Wall Street
Fast forward six decades. Release of donor lists for Proposition 8 and other controversial initiatives have led to toxic public shaming on the internet, destroyed careers (the former CEO of Mozilla, the former Artistic Director of the California Musical Theater), mobbing of private homes, doxxing, and business boycotts. Emboldened by these early successes, those who wish to practice the politics of personal destruction in California have now partnered with a government official not only willing to require non-profits to disclose their donors on a pretext as flimsy as any offered by the Alabama AG in 1958, but to do so in absence of any legislated authority to make such demands.
Regulation Without Representation
No one in California voted for this. No one in California has had the ability to present counter-considerations such as the fact that this equally puts progressive organizations’ freedom of speech and association at risk. No one will be politically accountable for the damage that will ensue after the inevitable leak of information, access to which the government was never entitled in the first place.
Freedom of Speech and Association
Free speech and association are supposed to be inviolable against what James Madison called the spirit of faction. This means they cannot be extinguished by diktat, nor do those rights have to be justified by some heightened showing of actual or threatened victimization as the Ninth Circuit erroneously required in the decision that Americans for Prosperity seek to have set aside in this case. Donors to organizations that support unpopular causes in this internet-enabled world of instant cancel culture should never be put to the task of proving a risk of violent or non-violent bullying[1] —they obviously face lost employment, destruction of reputation, and sometimes permanent diminution of employability. The state of California’s position that donors must show that their physical safety would be endangered by disclosing their association with a dissident organization not only ratchets a requirement never required by the Court in NAACP v. Alabama but requires a showing that is only possible to make after the damage is done. A more cynical, burden-shifting, and dangerous misreading of NAACP can hardly be imagined.
Canceling Real Culture in Service of Cancel Culture
Our state and federal constitutional structure is designed to preserve the ability of political minorities to survive and thrive thus providing an essential check against prevailing—and too often flawed—majority ideologies. See The Federalist No. 10 (James Madison).[2] Bicameralism and presentment are deliberately designed to make law hard to enact, and thus reduce a majority’s abuse or arbitrary exercise of power.
The California Attorney General’s lawmaking by fiat guts these protections and substitutes the rule of men for the rule of law. California’s history of making such information public, and the ease with which such private information can be shared or hacked, makes today’s government-compelled disclosures by administrative decree an exponentially larger threat to First Amendment freedoms than they were at the time NAACP v. Alabama was decided. The Supreme Court should reverse the Ninth Circuit’s disturbing erosion of our laws and social culture protecting these freedoms, and reinvigorate judicial and constitutional protections for all viewpoints, minority views, and unpopular opinions.
[2] “Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, (by their number and local situation, unable to concert and carry into effect schemes of oppression. * * * A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.” The Federalist No. 10 (James Madison).
October 17, 2019 | The Games Bureaucrats Play: AFPF v. Becerra—Civil Rights Jenga by Michael DeGrandis
Ah, the games bureaucrats play. They most often resemble Twister, of course: How well can you contort yourself to follow an agency’s myriad of guidance and regulations? But many of their games are more insidious, implicating fundamental rights including freedoms of speech and association. Case in point: the California Attorney General’s game of Civil Rights Jenga, where a state administrator’s executive fiat requires nonprofits to divulge the names, addresses, and donation amounts of their top supporters.
If you’ve never played Jenga, it’s a panic attack-inducing game that starts out deceptively Zen. The game consists of 54 rectangular wooden blocks. The blocks are neatly stacked crosswise three on top of three, into a remarkably stable tower 18 levels high. Players try to remove one block at a time from the bottom and relocate the blocks on top, without knocking the stack over. So, throughout the game, players are undermining the solid foundation of the tower, while precariously rebalancing the exposed blocks on top. By game’s end, players hold their breath because the slightest breeze or involuntary quiver can bring the once-orderly wooden tower down into a pile of haphazard kindling.
The Constitution and Jenga are more similar than they may seem at first blush. The Constitution neatly organizes civil rights into a tower of interdependent freedoms, very much like the wooden blocks in a Jenga game. Foundational liberties, such as those in the First Amendment, keep the tower stable. But when a civil right is removed from the base, all liberties secured by the Constitution teeter on the brink of collapse.
It’s a perilous game—this Civil Rights Jenga—but the United States Supreme Court can shore-up the foundation of our civil liberties if it hears the case of Americans for Prosperity Foundation (AFPF) v. Becerra.
“Insist on the list” becomes “resist the list”
California’s nonprofit organization supporter disclosure requirement—a/k/a insist on the list—is the brainchild of former California Attorney General Kamala Harris (now United States Senator and presidential candidate), and enthusiastically enforced by current Attorney General Xavier Becerra. AFPF declined to provide their supporter list to the attorney general. The district court enjoined the attorney general from acquiring AFPF’s supporter list, but the Ninth Circuit reversed and declined to rehear the matter. So, AFPF and another charity filed petitions asking the United States Supreme Court to take up their case.
And the Supreme Court should take up the case, in part to reaffirm NAACP v. Alabama (as I argued in my October 2018 op-ed on Townhall.com), but also to emphasize how critically important each civil liberty is, in relationship to the others. This is especially true for people who hold unpopular minority viewpoints.
The freedom to associate is vitally linked to privacy in one’s associations
The First Amendment underscores that the government (including state governments under the Fourteenth Amendment) may not make laws that would abridge our rights to freedom of religion, speech, press, assembly, and redress of grievances. Because our government is one of enumerated powers only, it should be apparent that rights related to these are also protected from infringement, such as the right not to speak, the right to associate, or in the case of AFPF v. Becerra, the right to privacy in one’s associations.
And while all Americans have the right to associate, this right is even more meaningful to minorities and those who espouse unpopular opinions and viewpoints. For the socially and politically marginalized, privacy is more than a fundamental civil liberty—it’s a necessity. Associating with like-minded or like-situated people is the best way to exercise freedom of speech by speaking with a unified voice, and—as the old adage goes—there’s safety in numbers.
Sadly, instances of violence, intimidation, and social and economic reprisals against people with unpopular viewpoints are all too common. Whether doxxing at the University of Texas, SWATting in Wichita, or a CEO or artistic director losing their jobs or facing public shaming, the loss of privacy when expressing unpopular viewpoints can silence speech.
The United States Supreme Court recognized this danger in NAACP v. Alabama. The NAACP Court stressed the “vital relationship between the freedom to associate and privacy in one’s associations.” NAACP supporters had to be protected from forced disclosure of their names and addresses because they rightly feared “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.” The “[i]nviolability of privacy in group association[,]” the Supreme Court concluded, “may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
Compelled disclosure of supporters facilitates the coercive tactics applied by those who oppose an organization’s views and who are determined to use social pressure or threats to stamp out differing viewpoints. The very real danger today is that state–compelled disclosure regimes can be combined with social media tools to coordinate social intimidation and threats of violence against a dissident organization’s supporters. The ease with which information can now be shared—or hacked by malevolent individuals and foreign governments—makes compelled disclosures an even greater threat to First Amendment freedoms than they were at the time of NAACP v. Alabama.
Without associational privacy, can the unpopular truly exercise their right to free speech? When state attorneys general—whether Alabama’s in 1958 or California’s in 2019—require disclosure of supporter lists, they are complicit in coercing silence from dissenting voices. It’s shamefully illiberal. And it’s patently unconstitutional.
Replacing the blocks to the foundation of civil rights
NCLA filed an amicus curiae brief in support of AFPF’s petition asking the Supreme Court to take up the case and overturn the Ninth Circuit. We asked the Court to vindicate NAACP v. Alabama—one of the canonical rulings of the civil rights era—and to declare that under the First Amendment, even if the government itself is not engaging in repressive behavior, the government cannot enable private citizens’ bullying and intimidation against others who anonymously join together to express their unpopular views through an organization.
As the bottom wooden blocks of the Jenga tower are vital to the tower’s ability to balance upright, so too are the fundamental liberties that empower us to speak freely, even when our viewpoint is unpopular—or even reviled. It’s going to take a very steady judicial hand to keep our teetering civil liberties from tumbling down around us. It’s not too late, but the Supreme Court must decisively put the associational privacy block back among the foundational civil rights guaranteed by the Constitution, where it belongs.