by Noah Feldman
On Monday, the Supreme Court grappled with a genuinely tough First Amendment issue: Should California be able to make charities that speak on matters of public concern disclose to the state the names of their big donors? The issue reveals something about the way that conservatives and liberals currently differ on free speech issues.
On the one hand, states might need the information to combat fraud. Moreover, California says that it will keep the information confidential. The IRS already gets this information from tax-exempt charities, and has so far done a good job of protecting it.
On the other hand, the Supreme Court has long held that the names of members of civic organizations like the NAACP are confidential, protected by the freedom of association. It isn’t implausible to think that if the justices uphold the California law, other states might pass laws requiring that donors be made fully public.
When the justices were deciding whether to hear the case, Trump’s Department of Justice filed a friend of the court brief saying it thought the law was unconstitutional. This matched the instinct of most legal conservatives, who today tend to support a First Amendment that is highly protective of absolute free speech, including protection of anonymity.
The Biden Department of Justice reconsidered the issue and took a different stance. In essence, it has recommended that the justices split the baby in two. First, its brief says that because the information won’t be publicly disclosed, the court should evaluate the state’s need less exactingly than it would if the names were being given to the public. If judged by that easier standard (in legal jargon, “exacting scrutiny” instead of the more rigorous “strict scrutiny”), the California law has some chance of being upheld.
Second, the Biden Justice Department brief goes on to say that the court should send the case back to the federal appeals court to determine how much risk there is that the California law might deter donors from giving money to charities. This leaves open the possibility that the law could still be struck down.
Behind this complex argument is the Biden administration’s liberal worry that if the court were to strike down the California law, the decision might call into question the law that commands disclosure of political donations to candidates.
That’s an understandable worry. But it gets the Biden brief into some deep and dangerous waters.
The Biden administration’s brief insists that there is a difference between a law that burdens free association directly, which should get the highest level of scrutiny, and a law that only indirectly burdens that association, which should be evaluated more deferentially.
What’s troubling about this distinction is that it weakens the principle of free association established by the Supreme Court in the landmark 1958 case of NAACP v. Alabama. In that case, the court held that Alabama could not require the organization to tell the state’s attorney general who its members were.
Back in the 1950s, the justices didn’t always use the same terms of art that they do today to describe how closely they were evaluating a law. The court didn’t use the words “exacting scrutiny” or “strict scrutiny.” But it did say that Alabama’s reason for demanding the membership list had to be “compelling” — language that prefigures the strict scrutiny test, not the less-rigorous exacting scrutiny test.
NAACP v. Alabama was a liberal decision, intended to protect civil rights activists from hostile retaliation at the height of White southern resistance to desegregation. And for decades, liberals believed that preserving the privacy of members of civic organizations was crucial for protecting free association. Donations to political candidates were a different matter, connected to avoiding corruption in elections.
In recent years, however, liberals have started worrying more about how wealthy conservative donors are affecting public life — not only in elections, but in other contexts like those covered by the California law. That’s led to a liberal rethinking of the right to associational privacy.
The concern is certainly legitimate. But liberals should not forget that conservatives can still use disclosure of donations or membership lists to target liberals. Imagine that the California law was being proposed or implemented by conservatives. Then liberals would rightly be worried that donors to Black Lives Matter or to trans rights groups would have to be disclosed to the states.
Perhaps the California law can be distinguished from the Alabama law on the ground that it won’t necessarily lead to retaliation against donors. Regardless, the justices should be careful not to weaken the principle of free association — including organizations’ right to keep their membership lists private.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
