Potential SCOTUS case could protect supporters of unpopular causes from retribution

Written by William C. Duncan

April 9, 2020

On May 17, 1954, the U.S. Supreme Court issued a unanimous decision striking down state laws segregating schools by race. It was the culmination of a multi-decade effort by the NAACP to end legal racial segregation.

The decision also brought hostile attention to the NAACP’s advocacy for the rights of African-Americans. Several states brought lawsuits to keep the organization from operating. The most well-known became Alabama’s, which resulted in a landmark 1958 decision, NAACP v. Patterson.

Alabama sued, alleging NAACP was “causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama” through its work helping African American students enroll in the state university and supporting a boycott against segregated busses. The local state court issued an order that same day ordering the NAACP not to pursue activities in the state starting immediately.

Before a hearing could be held in the case, Alabama tried to get a number of documents from the organization “including bank statements, leases, deeds, and records containing the names and addresses of all Alabama ‘members’ and ‘agents’ of the Association.” When they refused to produce these documents, the court fined them $100,000 and refused to let the case advance until the documents were produced. The state supreme court twice refused to review the case, so the U.S. Supreme Court took it on.

The Supreme Court said, “advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association” and that “freedom to engage in association for the advancement of beliefs and ideas” is protected by the Constitution. Here, the Court said requiring the NAACP to disclose its members would infringe on the First Amendment right of assembly (referred to as “association” in the opinion).

This was especially true because the NAACP had given evidence that disclosing members’ names in other places, “has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”

It took until 1964 for the NAACP to eventually resume operations in Alabama.

Today, the U.S. Supreme Court has been asked to hear a case that raises similar concerns. It was brought by a conservative legal organization called the Thomas More Law Center. In 2012, the California Attorney General determined it would not accept the Center’s annual 990 report (as it had done for a decade before) unless the Center included confidential donor information.

The Center declined, pointing out valid reasons for doubting that information would be kept confidential. For instance, noting that California places the information online, inviting attempts by hackers to get it – and that, in contrast, the IRS does not post the same information online. In fact, as the Center’s petition points out, the California Registry of Charitable Trusts “negligently posted nearly 1,800 IRS Form 990 Schedule Bs online, including one listing Planned Parenthood Affiliates of California’s supporters.” As the Center notes, “once the State posts donors’ personal information on the internet, it remains public forever and puts donors’ and their families’ privacy at risk.”

Like the Alabama case, this one raises the specter of harassment of supporters of unpopular causes. Justice Clarence Thomas recently noted this problem, describing the backlash when personal information about donors who gave more than $100 in support of California’s Proposition 8 were listed on “Web sites with maps showing the locations of homes or businesses . . . . Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result.”

Interestingly, the Proposition 8 Legal Defense Fund filed a brief supporting the Thomas More Center’s petition for Supreme Court review. They explained (quoting Justice Thomas): “…the forced disclosure of donor information ultimately operates to prevent people from speaking, because they ‘enable private citizens and elected officials to implement political strategies specifically calculated to curtail

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and prevent the lawful, peaceful exercise of First Amendment rights.’” Their brief shares experiences of vandalism, death threats, physical violence, destruction of livelihoods, and workplace harassment associated with disclosure of the campaign’s supporters.

The Center eventually sued and the federal trial court ordered the state to stop enforcing its policy. The California attorney general appealed that order to the U.S. Court of Appeals for the Ninth Circuit which said the order was unnecessary. They believed they were bound to respect the state’s decision. So, the Center is seeking U.S. Supreme Court review of its case.

The initial briefing is done, but the Court asked the U.S. Solicitor General’s office to weigh in on whether the Court should take the case. Once the solicitor general has replied, the Court will make its final decision of whether to add the case to its docket and can schedule briefing and arguments.

This is an important case with the potential to clarify whether a state can, like Alabama tried to do in the 1950s, create a climate where supporters of private associations are at risk of being harassed or intimidated because of their beliefs. Without this protection, the ability of people to join together to promote causes – religious, political, economic, whatever – is hampered and our society is poorer for it.

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