SCOTUS Tasked To Defend Donor Privacy: New Weapon Against Free Speech

Free speech is the cornerstone of American democracy, and donor privacy is essential to protecting that freedom. The freedom to associate with and contribute to the causes of your choice – and do so privately – is a liberty which has emphatically been protected by the Supreme Court under the First Amendment. Yet the government continues to find ways to pry into private giving, which chills speech and intimidates Americans.

A State government demands a donor list

This October term, the Supreme Court will determine whether serving state-issued subpoenas that compel the disclosure of an organization’s donor list amounts to a constitutional violation. The American Legislative Exchange Council (ALEC), along with other voices across the ideological spectrum, say they do, and submitted amicus curiae briefs to the Supreme Court arguing so. In ALEC’s amicus brief, we shared our own experiences being the target of state investigatory actions, argued to defend First Amendment-protected liberties, and re-emphasized that federalism provides both state and federal forums to vindicate such constitutionally guaranteed rights.  

First Choice Women’s Resource Centers – a faith-based health care and resource provider for pregnant women – became the subject of an investigatory subpoena issued by the New Jersey attorney general compelling the disclosure of their donor list. First Choice filed a federal lawsuit challenging the subpoena, claiming deprivation of their right to freely associate; however, the U.S. District Court for the District of New Jersey deemed the claim unripe as the subpoena had not yet been enforced by New Jersey. On appeal, the Third Circuit affirmed. Now, the Supreme Court will likely set a new precedent for First Amendment violations, organizational donor privacy, and the ripeness doctrine itself.

How is this case not ripe?

The District Court and Third Circuit’s preclusion of First Choice’s claim based on ripeness grounds is what makes this case particularly unique. The U.S. District Court ruled it didn’t have subject matter jurisdiction to hear the merits of First Choice’s suit, because the “… Plaintiff has yet to suffer any actual or imminent harm related to [the subpoena].” The central question in this case is whether legal harm exists. Should the simple issuance of an investigatory subpoena of this nature provide for a justiciable claim? Is there any actual or imminent harm suffered by such an investigatory subpoena? The answer to both is yes.

In 2021, the Supreme Court reviewed a California law that called for the dragnet-style collection of charitable organizations’ donor lists, in Americans for Prosperity Foundation v. Bonta. In a landmark free speech decision, the Supreme Court held, under the First Amendment, that the California law was unconstitutional on its face, as compelled disclosure requirements by the state must satisfy exacting scrutiny, requiring a substantial relation between the disclosure requirement and a sufficiently important governmental interest.

Consequently, the California law failed the exacting scrutiny analysis. The majority warned that these types of blanket disclosure rules discourage people from supporting the causes they believe in, stating that “every demand that might chill association therefore fails exacting scrutiny.”

Investigatory subpoenas create the same harm as do donor disclosure laws

The lesson from AFPF v. Bonta is clear: If broad disclosure laws are unconstitutional because they chill speech, then investigatory subpoenas aimed at donor lists create the same harm. The Supreme Court has already recognized that the threat of disclosure alone is enough to silence association. Waiting for enforcement can only magnify the damage. Even more dangerous, while California’s disclosure law was enacted by a democratically elected legislature, probing investigatory subpoenas issued by state attorneys general are a loaded gun requiring only a single shooter.

Each investigatory subpoena ultimately leads to enforcement unless properly challenged. Once donors know the state is probing their giving, many will think twice before contributing to charitable organizations again, including First Choice. That hesitation itself is a loss of speech, as it deters people from expressing themselves through the causes they support. To say that the full force and effect of a subpoena must first unfold to generate the harm necessary to bring a federal claim seems to put the concept of constitutional protections upside down.

The issuance of the subpoena is the harm itself. If not, it is at least the imminent harm courts require to bring suit. By allowing government actors to target charitable organizations, state officials are given a green light to weaponize subpoenas as tools of intimidation against groups with a different worldview they want shut down.

How will the Supreme Court act?

ALEC is hopeful that the Supreme Court will rein in the authority of state actors who wish to violate the rights of charitable organizations and significantly disrupt their operations. It is evident to us that the First Amendment demands it.

This article was originally published by RealClearPolitics and made available via RealClearWire.