First Amendment Win In the Offing

I think the first time I was really aware of Kamala Harris was when, as Attorney General of California, she launched a strike against conservative nonprofits. The State of California demanded access to donor information that is protected from disclosure by federal law. Harris pretended that California wanted the donor information not to disclose it, but to use it to investigate charitable fraud, but everyone believed that her real purpose was to facilitate leaks that would lead to doxxing, Twitter attacks on public-facing companies, and hostile crowds gathered on conservative donors’ lawns.

Subsequent experience supports the conclusion that Harris’s stated rationale was a pretext:

When the matter came to trial in 2016, state officials conceded that they hardly ever used their database for investigations. And the challengers unearthed tens of thousands of confidential documents, including contributor lists, left unsecured on the attorney general’s website.

The lawsuit challenging Harris’s initiative is Americans for Prosperity Foundation v. Rodriquez. Despite the lack of any substantial showing in the trial court, the far-left 9th Circuit Court of Appeals upheld California’s intrusive demand for donor information. AFP appealed to the Supreme Court, and oral arguments on the case were held this morning.

The leading case in this area is NAACP vs. Alabama. During the most heated days of the civil rights movement, Alabama’s state government tried to obtain the NAACP’s membership list. The Supreme Court held unanimously that the First Amendment guarantees not just a right of association, but a right to private association. The Court recognized that there are instances where public disclosure would chill the ability of citizens to enjoy their First Amendment rights.

Acknowledging that precedent, the State of California vowed that its regulations did not contemplate any public disclosure of information about donors to 501(c)(3) organizations. But news accounts indicate that the justices were unimpressed, especially given California’s track record. Even the liberal justices expressed skepticism that California’s regulation could be squared with NAACP vs. Alabama.

As the President of a conservative non-profit, I appreciate the significance of this issue, especially in today’s intolerant and violent atmosphere. I think it is highly probable that the Supreme Court will come down on the side of donor privacy. The issue is significant to the conservatives who look to the Court for protection, while at the same time most people are not tuned in to the issue at all, and little or no political capital will be expended if the Court does the right thing.

Still, this is just one of many instances where we conservatives are fighting to maintain a status quo that is fast slipping away from us. We need to go on offense, yet we cannot be indifferent to the importance of fending off the Left’s constant attacks, of which this is one.