Donor Privacy: Supreme Court and Governments Must Protect Americans’ First Amendment Freedoms

In a world plagued by politicized violence, “doxxing” and harassment, should your voluntary donations to nonprofit groups whose missions you support be made public for anyone with a grudge and an internet connection to see?  

The answer should be obvious to any person of good conscience.  

Government collection and publication of your private associations serves no purpose other than to discourage you from exercising your First Amendment freedoms of speech, association and petition of government.  

Even in the absence of targeted violence, moreover, abusive bureaucrats like former Internal Revenue Service official Lois Lerner can persecute you when information in possession of government facilitates it.  

Despite those proven risks, governments at the federal, state and local levels continue to demand that sort of information from organizations you support.  

In a case before it this term, however, the United States Supreme Court can check that abuse and strengthen private citizens’ First Amendment rights to speak, assemble and associate without fear of government-mandated exposure.  

The pro-life appellant in First Choice Women’s Resource Center v. Platkin, just like countless other charities and nonprofit organizations, relies upon financial donations from private citizens.  Those donors support First Choice’s mission enough to donate their hard-earned dollars, but obviously don’t want government compelling them to publicly identify themselves in ways that might expose them to retaliation.  New Jersey Attorney General Matthew Platkin, however, now seeks forced disclosure of First Choice’s donor lists even though no illegality or malfeasance has been reported.  

This latest controversy before the Court doesn’t arise in a vacuum.  We live in an age in which “doxxing” – the exposure of private individuals’ names, addresses, employers and contact information – is both increasingly common and weaponized.  With ease, online mobs target anyone whose values diverge from their own.  

That climate of hostility is why forcible disclosure presents such a threat to our constitutional order.  It discourages citizens from joining, funding or even interacting with organizations engaged in perfectly lawful advocacy.  Many people conclude that the cost is simply too high – supporting a cause in which they believe isn’t worth risking their safety, their jobs or their families.  

Indeed, the Supreme Court itself recognized that First Amendment chilling effect long before the age of internet searches and digital mobs.  In the landmark decision NAACP v. Alabama (1958), the Court unanimously held that compelling an organization to disclose its membership could invite retaliation.  It recognized that forcible disclosure imposed an unconstitutional burden on members’ First Amendment rights, because “inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association.”  

That logic remains every bit as essential – perhaps even more so – today.  

Sadly, however, courts since that decision have too often failed to enforce its holding with the vigilance that the First Amendment merits.  Government officials claim, too often with judicial deference, that unless groups can prove in advance that harassment will occur, compelled disclosure is no big deal.  

But that gets it backward.  The Constitution exists to protect Americans before threats arise, not merely after damage has occurred.  

Moreover, officials supporting compelled disclosure often claim that access to donor and membership lists serves important purposes of transparency.  But that again gets it backward.  Citizens don’t owe government an accounting of which lawful advocacy organizations they support any more than they owe government a list of what books they read, what newspapers they purchase, what news channels they watch or how they vote.  

First Choice v. Platkin offers the Supreme Court an opportunity to restore the full force of the NAACP v. Alabama ruling’s logic, and make clear that compulsory disclosure of donors has no place in a free society unless the government can demonstrate a truly compelling interest in disclosure, achieved through the narrowest means possible in order to protect donors’ First Amendment freedoms.  

Whatever the Court’s ultimate ruling, Americans must demand that elected leaders and government officials do a better job of respecting citizens’ First Amendment rights and refrain from potentially dangerous efforts to violate them.  

Amid today’s toxic environment of discourse, where anonymity offers a critical buffer protecting everyday Americans from potential hostility, government’s duty is straightforward.  It must respect that our Constitution safeguards not only the right to speak, but to do so without fear, and without the prospect of appearing on lists that make them public targets.  

A positive ruling in favor of First Choice would not only reinforce important First Amendment precedent, it would also reinstate a necessary check on government overreach in an era where personal safety and free expression and association are too often at odds.  The Supreme Court must therefore seize this opportunity to affirm that private association is not a concession granted by government, but a core liberty that the Constitution demands governments respect.

Timothy H. Lee is Senior Vice President of legal and public affairs at the Center for Individual Freedom (www.cfif.org).

Reprinted with permission from cfif.org by Timothy H. Lee.

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.