Last Thursday, the Supreme Court struck a blow for the freedom of association and against the reigning cancel culture when it struck down California's requirement that charitable nonprofits provide the state Attorney General’s office with the names and addresses of major donors. In a 6-3 decision in Americans for Prosperity Foundation v. Bonta, the Court said that the California law was unconstitutional on its face because it discourages donors from making contributions to controversial groups and exposes donors to such groups to harassment and even violence, thus chilling the First Amendment right to freely associate.
In this challenge by two conservative nonprofits, the Americans for Prosperity Foundation (AFPF) and the Thomas More Law Center (TMLC), the Court noted that "disclosure requirements can chill association even if there is no disclosure to the general public.” At the same time, the Justices recognized that the problem is magnified by the very real threat of public disclosure of donors' information, whether by mistake, hacking, or intentional leaking. The two organizations pointed out that this threat is further heightened where, as in California, the conservative donors and nonprofits hold political views that differ markedly from those of the state.
In today's society, a donor is exposed by disclosure to intimidation or cancellation by those who oppose the recipient organization's viewpoint. As AFPF noted in its brief, "social and political discord have reached a nationwide fever. Perceived ideological opponents are hunted, vilified, and targeted in ways that were [once] unthinkable."
The Court acknowledged that our culture and technology make the First Amendment right to anonymous association more important than ever. It cited evidence that the two groups "and their supporters have been subjected to bomb threats, protests, stalking, and physical violence" and noted that "risks are heightened in the 21st century" because the internet facilitates access to confidential information. The internet also makes it easier to mobilize cancel culture tactics against donors to organizations one dislikes.
Even the Court's three dissenters had to acknowledge the realities of our cancel culture, conceding that the two groups "unquestionably provided evidence that their donors face a reasonable probability of threats, harassment, and reprisals if their affiliations are made public."
That threat was undeniable given California’s particular incompetence in protecting confidentiality. The state "systematically failed" to maintain the confidentiality of donor information, as the trial court put it.
Many critics of the California law believe that bias against conservative organizations, as much as incompetence, is also to blame for the failures. However, the Justices noted that "The gravity of the privacy concerns . . . is further underscored by the filings of hundreds of organizations as amici curiae in support of [AFPF and TMLC]. . . . [T]hese organizations span the ideological spectrum."
Several amici noted that America has a long tradition of protecting anonymity under the First Amendment. Despite the use of "dark money" as an invective these days, that tradition dates back to the anonymous publication of the Federalist Papers and Thomas Paine's Common Sense.
In the end, this was not a difficult decision for the Court because it concluded that California could not show any substantial benefit from its disclosure requirement beyond mere "ease of administration," which "does not remotely reflect the seriousness of the actual burden that the demand for [donor information] imposes on donors’ association rights."
With racial issues at the forefront of the cancel culture debate, it was fitting that the Supreme Court largely based this decision on its 1958 precedent in NAACP v. Alabama. There, the Court unanimously ruled that given the “the vital relationship between freedom to associate and privacy in one’s associations," the First Amendment protected the NAACP from having to disclose its membership list to the state of Alabama at the risk of reprisals to its members.
As the Court noted in AFPF v. Bonta, the Alabama requirement was really "part of an effort to oust the organization from the State." In that sense, today's cancel culture and California's part in it are just a shiny, new version of old practices born of intolerance.