June 15, 2021
By Timothy Sandefur
As the U.S. Supreme Court considers two cases involving California’s demand that nonprofit organizations turn over their confidential donor information as the price of doing business in the state, Congress is weighing the euphemistically titled “For the People Act” (H.R. 1), which would strip people of their privacy rights if they exercise their freedom of speech regarding candidates for office. In the latest issue of Regulation magazine, I take a look at these and other challenges to the rights of people who donate money to causes they believe in. Here’s an excerpt:
Not only can [compulsory disclosure] lead to actual violence—perhaps years after the fact—but anti-privacy mandates encourage the insidious “chilling effect” whereby people refrain from donating to groups or causes they believe in for fear of retaliation. Measuring a chilling effect can be hard because it is impossible to determine how many people are frightened into silence. When people choose not to speak out, there are fewer instances of overt retaliation against speakers—just because there are fewer speakers. Or, as the D.C. Circuit Court of Appeals put it, the fact that one cannot point to specific examples of people being harmed for expressing themselves “can be viewed as much as proof of the success of the chill as of evidence of the absence of any need for concern.” When told that they must risk exposure and retribution for donating to causes they believe in, many people simply prefer to keep their heads down. And they’re right to be intimidated….
In fact, the Goldwater Institute is currently litigating on behalf of the New Mexico-based Rio Grande Foundation, which was punished under a Santa Fe ordinance that forces nonprofits to turn over their donors’ private information whenever they donate more than a paltry sum to either side of a ballot election. Because the Foundation posted a video on its Facebook page opposing a $0.02 tax on large sodas—and the city thought the video cost more than $250—the Foundation was ordered to place its donors’ information on a publicly accessible government list. That case is still pending before the Tenth Circuit Court of Appeals.
Freedom of speech shouldn’t come at the cost of privacy. When the government tells people that they are free to support causes they believe in—but only if they publicize their names, addresses, and employment information, thereby inviting hostility and retaliation and possibly even violence—the consequence is the “chilling effect” whereby people simply stop speaking their minds. And that’s not good either for individual rights or for democracy.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.