Despite a Supreme Court case asserting the free-speech rights of philanthropic organizations, state governments have kept up their assault on them.
Despite a Supreme Court case asserting the free-speech rights of philanthropic organizations, state governments have kept up their assault on them.
I s free speech finally safe from state attacks? That was the hope two years ago on July 1, 2021, when the Supreme Court struck down a California law forcing nonprofits and non-partisan charities to hand over lists of their major supporters. The decision in Americans for Prosperity Foundation v. Bonta was supposed to stop states from subjecting people to speech-chilling threats of intimidation and violence, yet after a short-term lull, the assault on the First Amendment has returned with a vengeance.
The 2022 state legislative season — the first since the Bonta decision — saw multiple states end donor-disclosure mandates. Yet in the first six months of 2023, no fewer than 19 states have considered legislation that would compel diverse and even apolitical organizations to share private supporter information. They range from blue states to purple states to red states, with at least eight bills still pending. That includes a bill in California — the state at the heart of Bonta — mandating disclosure of people who help fund ballot initiatives.
The furthest along is Arizona, which put free speech on the ballot last fall. Proposition 211 passed, requiring any group which spends more than $25,000 on a local issue or $50,000 on a state issue to list its supporters’ identities and addresses. This mandate goes beyond donations to political campaigns, which must be disclosed under long-standing federal law. Instead, it applies to groups that advocate for policies — everything from immigration to school choice to tax cuts to abortion, either for or against. The same is true of virtually every bill under consideration nationwide.
The threat to free speech is obvious. When someone is outed in the public square, including their addresses and employers, their opponents have a golden opportunity for intimidation. They can protest outside a family’s home, pressure companies to punish people, and engage in other menacing activities. The Supreme Court highlighted the dangers in Bonta, including a threat to “slit his throat” as well as “bomb threats . . . stalking, and physical violence.” Faced with such threats to life and limb, many Americans would rather stay silent than give to a cause that’s controversial, even if it’s a charitable one. This campaign endangers both their safety and the viability of the groups they support, hurting many vulnerable Americans who rely on the generosity of such organizations.
The very language used to justify these policies encourages such targeting. Whether it’s the Arizona ballot measure or legislation in other states, activists and their legislative allies say they’re waging a war against so-called “dark money.” See Michigan attorney general Dana Nessel, who recently called it “corrosive to government.” The implication is that anyone backing these groups is engaged in nefarious activity, with ulterior, and perhaps evil, motives. Even when anonymous donors are brought into the light, the rhetoric all but guarantees they’ll be targeted for daring to give in the first place. The incitement isn’t incidental. It’s the entire point.
The Supreme Court sought to protect free speech from these blatant assaults in 2021, yet the people behind the latest attacks think they’ve found a loophole. The Bonta decision overturned California’s requirement that charities disclose their major supporters to the state, but not the public, although at least 1,800 donor lists had been leaked. The Court held that this policy wasn’t “narrowly tailored to an important government interest.” New policies, such as Arizona’s, are ostensibly narrowly tailored because they give the public more information. In practice, however, they are broadly dangerous, and the threat to free speech is even more apparent and immediate.
Who will stop these new assaults on the First Amendment? The federal courts are likely to intervene again. Multiple organizations, including the Goldwater Institute and Americans for Prosperity, have filed lawsuits challenging Arizona’s policy. As more states mandate disclosure, whether via ballot measure or legislation, other lawsuits will be filed. Yet the reaction to the Bonta decision shows that activists are willing to ignore judicial rulings. Something more is needed to protect free speech: a federal law.
Congress should pass legislation codifying the Bonta decision and protecting donors’ private information from unwarranted disclosures. Such a bill could draw endorsements from across the political spectrum. After all, nearly 300 diverse organizations supported the Bonta ruling, ranging from the Southern Poverty Law Center and the Human Rights Campaign on the left to the Leadership Institute and Americans United for Life on the right. While congressional Democrats are most likely to support the current state campaigns, one would hope they would find it hard to oppose storied groups such as the NAACP and the ACLU. It turns out that people of all political stripes don’t want to be subjected to intimidation and violence.
Congressional action is needed soon. In the two years since Bonta, the state assault on free speech has only gotten worse. Activists are already laying the groundwork to force donor disclosure in dozens of states in the next few years. Every American’s First Amendment rights won’t be safe until this nationwide campaign is finally and fully stopped.