by Matt Miller

February 8, 2019

A recently concluded trial in Denver, Colorado, centered on the right of 501(c)(3) and (c)(4) nonprofit groups to protect their donors from being put on a government list and having their addresses, occupations, and employers published on the Internet. The Goldwater Institute brought the case on behalf of two Colorado nonprofits—the Colorado Union of Taxpayers Foundation and the TABOR Committee—to challenge a Denver ordinance that requires groups spending more than $500 to support or oppose a Denver ballot measure to disclose to the government the personal information of anyone who gave them money to communicate with voters.

I will write separately about the outcome of the trial, although I will note here that the judge ruled against CUT and TABOR on standing grounds, and that both groups plan to appeal. But I wanted to take this opportunity to highlight some of the most important testimony from the trial, which documented the kinds of ideological harassment that representatives for the plaintiffs, as well as similar free-market nonprofits, regularly endure.

Penn Pfiffner, the Chairman of the TABOR Committee, testified about how his property was vandalized when he put simple political signs—two supporting candidates and one supporting a ballot measure—in his front yard. The first time, his car was egged the day after he put out a sign supporting a Republican politician. The next time, his car and house were egged. The third time, a football-sized rock was thrown through the back window of his car with such force that it damaged the car’s dashboard when it landed. As Penn noted, “That was when I finally got the message.” He has not displayed any yard signs since then, even though such signs are one of the most elemental forms of political speech.

Similarly, Marty Neilsen, the President of the CUT Foundation, testified about how her car was keyed the day after she put up a sign expressing support for a Republican candidate. And two people tried to run her and her husband off the road—complete with yelling and obscene hand gestures—after she displayed a Trump/Pence bumper sticker on her car.

The trial concluded with testimony from representatives from two free-market, limited government think tanks from other states. The first, who works on “right to work” issues nationwide, testified about how he was spat upon as he and his wife attempted to park at an event where he would be speaking. Later, he was threatened by a caller to NPR while he was giving an interview. The caller asked him if he “knew what he would find when he got home tonight.” This alarmed the witness so much that he and his employer sent a private security team to the witness’s house to do a welfare check on his wife, who was home alone at the time.

The final witness, who works for a state-based free-market think tank, testified to a litany of harassment that he has endured over the years as a result of the work he does. He produced a series of vile and obscene emails threatening him with sexual violence. He produced a tweet wishing the witness would get a “bullet between the eyes.” He produced a separate tweet from a state legislator—who should know better—attempting to link his group, which works on issues like tax and education policy, to white extremist groups. And he discussed how, recently, his group has been subjected to a series of harassing emails and phone calls from a local college professor. He was concerned enough about all of these things to report the incidents to the local police department.

To be clear: None of this is garden-variety political vitriol. People who work in the public policy sphere expect their opponents to vehemently disagree with them, and even to call them childish names. But they do not expect to be spat upon, have their cars and homes vandalized, have death wished upon them, have elected officials attempt to link them with white supremacist groups, be run off the road, or have their staff subjected to endless, bizarre harassment from a local college professor.

This testimony was gripping, and it highlighted exactly why the plaintiffs brought this case in the first place. Although they shouldn’t have to, leaders of nonprofits know that having their name on the Internet might subject them to harassment and intimidation. To some extent, that risk comes with the territory. But someone giving as little as $50 to a nonprofit will have their name and address reported to the city, to support simple speech about a local ballot measure. These people should not have to worry about being the target of threats. That is why the right to privately support the causes we believe in is protected by the First Amendment and by state constitutions.

No one should suffer vandalism, destruction of property, and physical assaults for expressing their political beliefs, as the judge at the trial noted when he handed down his ruling. It is simply un-American and has no place in our political discourse. The response to someone expressing a message you disagree with is to either ignore them, or to engage with them in a peaceful exchange of ideas. 

Although the incidents that were described during this trial didn’t make national news, they highlight that the threat of ideological harassment and intimidation is ever-present. The government should not be facilitating it by forcing nonprofits to disclose their donors so that their identities, occupations, and employers can be put on the Internet for everyone to see. By doing so, these laws invite exactly the kind of threats, intimidation, and violence that was documented during the trial.

Matt Miller is a Senior Attorney at the Goldwater Institute. He represents the plaintiffs in Colorado Union of Taxpayers Foundation v. City of Denver.

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