by Rachel McPherson
Cities and states across the country are enacting laws requiring nonprofit organizations to turn over their donor lists any time those groups speak about important public issues. With this troubling trend growing, the time to discuss the free speech rights of nonprofits and their donors is now.
Earlier this week, Goldwater Institute Senior Attorney Matt Miller and National Review Senior Writer David French discussed free speech and the privacy of nonprofit donors at two Goldwater Institute-hosted events in Phoenix and Tucson. At the Phoenix event, French set the stage by discussing the current state of free speech; when it comes to free speech, there’s actually a lot to be optimistic about. “The law of free speech right now in the United States of America is actually freer, more permissive, and you have greater protection from the government—right now, today, in October 2018—than arguably, I’d say almost certainly, any time in the history of the United States,” he said.
French explained that there is remarkable agreement between the nine Supreme Court Justices on free speech issues, in spite of the different judicial philosophies on the nation’s highest court. While 5-4 decisions at the Supreme Court are fairly common, the Court usually decides free speech cases by 9-0 or 7-2 votes.
But there is a big free speech problem that can’t be ignored: People don’t actually feel like they have the freedom to speak without repercussions from their peers, employers, or the government. This is especially prevalent in the political arena where activists—and elected representatives—are demanding to see where money is being donated and from whom. “For a government official to just say, ‘You have a right to know,’ does not bestow upon you a right to know, especially when that right to know impairs my right to engage in political advocacy—which is actually protected in the Constitution,” French said. “Political speech is why the First Amendment exists. It exists for other reasons as well, but the core of it is to protect political speech. Now we’re running around treating political speech like it is somehow inherently suspect? So suspect that the government has to know—needs to know—who’s doing it?”
And so the Goldwater Institute has gone to court to defend this essential right: The Institute is currently involved with two donor privacy cases, one in Denver, Colorado and another in Santa Fe, New Mexico. What’s the big issue? Namely, these cities are trying to police political speech by requiring organizations to disclose their donors’ names, home addresses, and employer information, then posting said information online for anyone to see.
“In both cases, the cities have passed laws that require nonprofits, or any other group, who are communicating with voters about ballot measures to disclose their donors to the government,” Miller explained. “So if you choose to engage in speech that is trying to influence people’s decision about a ballot measure, you then have to disclose your donors in a report that is filed with the government and then provided by them on a website for anybody who wants to access it.”
“These are laws that target quintessential political speech about ballot measures that the government is trying to pass,” Miller said. By requiring organizations to turn over their donor profiles, the government is not only targeting organizations that both support and oppose ballot initiatives, but also their donors. The First Amendment rejects such an intrusion of privacy. And as Miller wrote in a recent Goldwater Institute report on the 60th anniversary of NAACP v. Alabama, a landmark U.S. Supreme Court case that upheld the constitutional right to donate anonymously to nonprofits, respecting donor privacy rights means that donors are better protected from harassment and intimidation from those who oppose their views.
You can watch the full event video above.
Rachel McPherson is a Ronald Reagan Fellow at the Goldwater Institute.