July 6, 2021
In 1958, the Arkansas legislature passed a law requiring schoolteachers to file an annual report listing any organization they were members of or had supported in the last five years. As the U.S. Supreme Court noted, the law required the teacher “to list, without number, every conceivable kind of associational tie – social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher’s occupational competence or fitness.”
The law was understood to target supporters of the NAACP and other advocates for racial integration. A group of teachers refused to comply, and their challenge to the lawsuit went to the U.S. Supreme Court. The court pointed to evidence that outside groups intended to use the disclosures to remove schoolteachers who supported organizations with whom the groups disagreed.
The Supreme Court held that the Arkansas law interfered with the teachers’ First Amendment right of association by creating an opportunity for reprisals against those who exercised that right.
Today, many groups and individuals – across a wide ideological spectrum – experience the same fear. As a result, the Supreme Court last week issued an important freedom of association decision to protect them.
The case involved a California policy that required all charities that solicit donations in the state to register with the state. That requirement was uncontroversial. In 2012, however, the state attorney general’s office added a requirement that the nonprofits file parts of the federal 990 form that include donor names and other sensitive identifying information.
Two nonprofits, Americans for Prosperity Foundation and the Thomas More Law Center, challenged the requirement. The latter organization is motivated by a sense of religious mission to litigate issues that are highly controversial. As a result, the center has received “threats, harassing calls, intimidating and obscene emails, and even pornographic letters.” The former advocates free market policies. It has also roused opposition and, as the Supreme Court noted, at least one death threat.
These organizations were joined by a wide range of other organizations who felt threatened by the rules, “from the American Civil Liberties Union to the Proposition 8 Legal Defense Fund; from the Council on American-Islamic Relations to the Zionist Organization of America; from Feeding America—Eastern Wisconsin to PBS Reno.” The Supreme Court said, “The deterrent effect feared by these organizations is real and pervasive, even if their concerns are not shared by every single charity operating or raising funds in California.”
The trial judge initially ruled in favor of the nonprofits. It concluded:
California was unable to ensure the confidentiality of donors’ information. During the course of litigation, the Foundation identified nearly 2,000 confidential Schedule Bs that had been inadvertently posted to the Attorney General’s website, including dozens that were found the day before trial. One of the Foundation’s expert witnesses also discovered that he was able to access hundreds of thousands of confidential documents on the website simply by changing a digit in the URL. The court found after trial that “the amount of careless mistakes made by the Attorney General’s Registry is shocking.”
After two trials, the trial judge “found that the Attorney General’s promise of confidentiality ‘rings hollow,’ and that ‘[d]onors and potential donors would be reasonably justified in a fear of disclosure.’”
The court of appeals reversed, leading the Supreme Court to take case.
Chief Justice John Roberts wrote the majority opinion joined by all but three justices. The court explained: “When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough, ‘[b]ecause First Amendment freedoms need breathing space to survive.’”
Since the California policy impacted constitutional rights, the state was required to offer justifications for its policy that would justify the burden on the right of association. The court discounted the state’s claim that the policy was necessary to prevent fraud. It said: “California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases involving filed complaints.”
The court also said that the fact that the policy made potential investigations easier for the state could not justify the chilling effect the law had on nonprofits’ right of association.
The decision provides an important protection from harassment and retributions against individuals who support controversial causes. This is particularly important in a time of increasing polarization when religious and political beliefs have become matters not only of disagreement but of sometimes serious enmity. The court’s application of constitutional principles ensures a wide range of groups can pursue their work and a wide range of citizens can support groups who represent their beliefs without fear of reprisals.
A recent news story pointed out that President Joe Biden has begun his administration with a strong record for getting new federal judges confirmed. Since taking office, he has managed to secure the confirmation of eight federal judges, more than any president since Richard Nixon.
With vision, leadership and sufficient efforts on the ground, we can muster the political will to plant “the Utah way” in the hearts and minds of future generations.
So if a destructive CRT ban is at best a partial policy solution – which may ultimately prove ineffective – what are the alternative (or perhaps additional) policy options that leaders should consider?