MORGAN: California Aims To Take Nonprofit Donors’ Right To Privacy


Zac Morgan Institute for Free Speech
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Several cases currently before the U.S. Supreme Court ask the question: will the court’s landmark case law from the civil rights era be lost to history, or do those cases reflect enduring constitutional principles, available to all?

One of those cases was brought by my organization, the Institute for Free Speech. In February of 2014, we received an odd letter from the California attorney general. It stated that we would be barred from soliciting money in California unless we provided our major donor list.

The Institute for Free Speech is a nonpartisan, 501(c)(3) nonprofit organization — legalese for charities and civil society groups. Our mission is to defend freedom of speech and association, so when we received this missive from the California attorney general, we instantly realized this was an unconstitutional demand.

In the 1950s and 1960s, the NAACP and its allies waged a hard-fought judicial campaign to ensure the right of privacy in association. Their victories established that the First Amendment protects private giving to civil society groups. As Justice Thurgood Marshall put it: “The First Amendment gives organizations such as the ACLU the right to maintain in confidence the names of those who belong or contribute to the organization, absent a compelling governmental interest requiring disclosure.”

After we filed a federal lawsuit, it became apparent that California did not have such a “compelling governmental interest” to justify its demand. Instead, the state claimed that it needed the information to enforce other laws, but never defined how that would actually work given the limited powers of the California attorney general’s office. In fact, it later became public record that the attorney general has never needed the donors for any law enforcement purpose — asking the question as to why California really is warehousing this constitutionally-sensitive information.

Unfortunately, the Ninth Circuit Court of Appeals broke with Marshall and the storied civil rights precedents of the Warren court. Instead, it limited those cases to a specific time and place, ignoring that the civil rights era court had clearly stated these protections apply to “all legitimate organizations.”

Freedom of association is the bulwark of civil society. It’s what prevents the Trump administration from digging through the records of #Resistance groups, and it’s what keeps San Francisco from knowing the donors to crisis pregnancy centers.

To be sure, this right is not unlimited. Candidates have to disclose donors so that we know where members of Congress get their campaign funds. But the law bars 501(c)(3) groups from participating in candidate campaigns. These philanthropic and ideas-based organizations should not be forced to bear the brunt of excessive government regulation. Nor should they have to expose their supporters’ personal information to state officials — especially when speaking about sensitive or unpopular issues. The First Amendment exists precisely to protect dissenters and conventional wisdom heretics.

Sixty years ago, the Supreme Court declared that all Americans enjoy the liberty to “pursue their lawful private interests privately and to associate freely with others in so doing.” This freedom is essential for the flourishing of our society — allowing each American to pair with like-minded others without government interference.

Hopefully, the court takes our case and reaffirms this constitutional truth.

Zac Morgan is an attorney at the Institute for Free Speech.

 The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.