In the News

The Supreme Court has an Opportunity to Combat Cancel Culture

March 19, 2021

By Kelly Shackelford, President, CEO, and Chief Counsel

Fearing for your life because of your political views would seem unthinkable to most in the United States. Yet, as our political and social discourse become more uncivil, cancel culture dominates board rooms and newsrooms, and we experience politically motivated violence in cities across the nation, the fear of actual harm is becoming far too tangible.

This fear is becoming commonplace, although it is utterly inconsistent with a country of freedom and the free exchange of ideas.

In the foundation of freedom and new ideas, people have always associated together in political causes. In the darker moments of our history, participation in those associations has been threatened by the government. But in 1958, in its landmark NAACP v. Alabama decision, the Supreme Court of the United States recognized the freedom of association and the right to donate anonymously to nonprofit groups as a constitutional right protected by the First Amendment. The court concluded that “privacy in group association” is “indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

That decision ensured that people could privately donate to the NAACP without fear of retribution and violence, an essential principle that we are once again fighting to protect in 2021.

Citizen Power is a nonprofit organization in the U.S. that is dedicated to advancing a peaceful transition to democracy in China through constitutional reform. Among other human rights abuses, it has drawn attention to the Chinese regime’s oppression of religious and ethnic minorities, including the Uyghurs. Its founder and president, Yang Jianli, narrowly escaped capture as he witnessed the Tiananmen Square massacre, and following his return to China, he was imprisoned until diplomatic efforts by the international community, including the United States, procured his release. Immediately following his return to the United States, he formed Citizen Power Initiatives, which has seen at least one of its major donors imprisoned in China.

For many of Citizen Power’s supporters, maintaining privacy is a matter of life and death.

But that privacy, as well as the privacy of all, is threatened by a dangerous California law. California requires all nonprofit, charitable organizations that solicit contributions within the state to register and file periodic reports with its attorney general, including a list of the names and addresses of all of their major donors.

California law imposes no civil or criminal penalties if those records are “accidentally” made public. In fact, evidence in court proceedings over California’s law found its blanket disclosure system has resulted in the exposure of around 1,800 confidential donor lists. Even during some of the litigation, every confidential document in the registry on California’s website was rendered vulnerable to unsophisticated hackers.

In California’s recent past, donors to Prop 8, the campaign to define marriage in the state Constitution, had their identities exposed and faced publication of their home and business addresses, property damage, threats of physical violence or death, forced resignations, and boycotts.

Two nonprofit organizations, Americans for Prosperity Foundation and the Thomas More Law Center, challenged California’s blanket donor-reporting requirement and won an injunction in district court. But, the U.S. Court of Appeals for the 9th Circuit, known as the most liberal in the nation, reversed the district court’s decision, leaving citizens who donate to nonprofits vulnerable to exposure, harassment, and worse. In January, the Supreme Court agreed to hear these cases and will hear oral arguments later this spring.

First Liberty Institute filed a friend-of-the-court brief in the case on behalf of Citizen Power. The danger to their donors is serious.

It is vital to freedom that the justices protect donors’ privacy to shield them from the incivility that dominates our political discourse. People should be free to support the causes and organizations they believe in without the threat of harassment or canceling.

That’s what makes California’s blanket donor-disclosure scheme so dangerous.

The liberties that the First Amendment expressly guarantees depend on vigorous protection of the freedom of association. If people cannot gather around ideas without fear, we all lose. That’s just one reason why blanket donor-disclosure regimes such as California’s create an intolerable risk of exposure and thus severely abridge that freedom. Exposure of a group’s members and donors can subject them to significant reprisals by the public and therefore dissuade further membership and donations — a fact that the Supreme Court has already recognized.

Cancel culture, and its bullying and suppression, goes against everything America is about. The government of California offers no compelling reason for requiring every nonprofit that has supporters in the state to disclose their donors. The state has already demonstrated an inability to sufficiently protect the donor identities from being exposed to the public, putting too many at risk of reprisal.

For the sake of our most fundamental freedoms and the safety of all, the Supreme Court has an opportunity to enforce the Constitution and act for all people. Cancel culture has no place in our constitutional system, and California’s donor-disclosure scheme must be struck down.

Note: This article was first published on the Washington Examiner and is re-published here with permission. The article presents the main points of an op-ed published in the Washington Examiner. This work was authored by Kelly Shackelford. The full article can be found on the Washington Examiner website, here.

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