If the First Amendment’s guarantee of the right to freely assemble is to mean anything in the 21st century, it must include the ability to freely associate with political, charitable or other organizations without the fear of harassment.
Thankfully, the U.S. Supreme Court’s decision last week in Americans for Prosperity Foundation vs. Bonta, California, recognized this, reversing a lower court ruling that had upheld a California law requiring charitable organizations to give the state copies of its tax documents, including the names and addresses of donors.
The ruling likely will keep many people from suffering threats or intimidation — or, what’s more likely in a modern world, “canceling” — for associating and contributing money to causes that, in some circles, are unpopular. This includes causes of a religious nature, an association also guarded by the First Amendment’s clause protecting the free exercise of religion.
In arguing its case, California had assured charities it would keep the donor information confidential. Chief Justice John Roberts, in the court’s majority opinion, wisely wrote that such assurances “are not worth much.”
In today’s hyper-partisan world, information leaks are common. Recent news accounts of the income tax returns of 25 wealthy Americans should be evidence enough of this. The more government hands that have access to such information, the more the misuse of information becomes likely.
Unfortunately, this ruling divided the court, 6-3, along traditional conservative-liberal lines. In her dissent, Justice Sonia Sotomayor said she would have been “sympathetic” to a narrow ruling in favor of the plaintiffs in this case, but could not support the majority’s decision to apply its logic broadly. That’s curious.
The court’s decision relied in part on a 1958 ruling that involved the NAACP and the state of Alabama. That case took place against the backdrop of Jim Crow laws and the physical assaults, harassments and even deaths of many people who supported civil rights and racial integration.
Alabama wanted access to the NAACP’s membership list as part of its relentless campaign to drive the organization out of the state. The court rejected that request. Justice John Marshall Harlan wrote that the constitutional rights of the organization’s members superseded any interest Alabama might have in obtaining their personal information.
That was a unanimous decision. Last week’s decision should have been, as well.
To be sure, donors to the Americans for Prosperity Foundation do not face the threats civil rights workers or Black Americans faced in the South in 1958, but even the dissenting opinion acknowledged they “face a reasonable probability of threats, harassment, and reprisals if their affiliations are made public.”
These threats should not be viewed narrowly as applying to donors to the foundation, only. Who knows what other issues may surface in the future, or what passions may arise concerning members of one group or another? The nation’s history is filled with examples of unpopular movements that started small and eventually grew to influence popular opinion in positive ways.
The court’s majority agreed with a lower court ruling that said California had not shown that it needed access to membership lists to combat fraud among charitable organizations. It has other ways to effectively guard against criminal intent.
The nation’s Founders wisely believed in the marketplace of ideas, where opinions, causes and organizations could compete freely for influence. They believed truth could be revealed best by allowing it to grapple with error, to paraphrase such early thinkers as John Milton and others.
Fortunately, the Supreme Court understands that this cannot happen if people are afraid to give freely to the charity of their choice because of reprisals or other consequences.