When free speech threatens government power, government has a tendency to get curious about the identity and funding of dissenting speakers. This was true in the civil-rights era, when the state of Alabama tried to force the NAACP to divulge its membership lists. It was true during the Obama administration, when the IRS targeted the Tea Party for illegal scrutiny not merely by asking in some cases for donor lists but also by inquiring about the political activities of family members of tea-party leaders and the login information of tea-party websites. And it was certainly true in the state of Wisconsin, when law enforcement used terrifying dawn and pre-dawn raids to gather information about First Amendment–protected issue advocacy about labor-union reform.
But why threaten to batter down a door when you can just pass a law that batters away at the Constitution?
That’s the state of New York’s approach, and it’s now facing one of the more important First Amendment challenges that you’ve likely never heard of. The case is called Citizens Union of the City of New York v. The Governor of the State of New York, and the law it’s challenging is a sprawling, complex monstrosity that imposes extraordinary regulations on speech about political issues, not just in support of political candidates. In other words, if nonprofits want to speak about life, gun rights, tax reform, or any number of issues that profoundly affect American lives, they will now find state bureaucrats watching and examining their activities closely.
Like many campaign-finance or so-called transparency regulations, devilish government intervention is hidden within a labyrinth of details that even lawyers struggle to decipher, but the bottom line is that the law guts donor confidentiality when a 501(c)(4) — the kind of nonprofit at issue in the Tea Party–targeting scandal — actively tries to influence public policy. In other words, if it tries to reach 500 or more people in the general public and “refers to and advocates for or against a clearly identified elected official or the position of any elected official or administrative or legislative body relating to the outcome of any vote or substance of any legislation, potential legislation, pending legislation, rule, regulation, hearing, or decision by any legislative, executive or administrative body,” then the law triggers extraordinary disclosure obligations.
Notice the incredible breadth of the law. If a nonprofit wants to advocate against even the position of an elected official (not even against their election or reelection), they’re going to be forced to disclose the identities of every management official in the nonprofit, describe the communications covered by the law, detail the key financial arrangements that facilitated their communications, and then disclose all of the organization’s significant donors (those who gave $1,000 or more). The law even extends similar disclosure requirements to 501(c)(3) organizations when they make even minimal financial or “in-kind” donations (such as office space or office supplies) to covered 501(c)(4) organizations.
The end result is a law that gives government and hostile members of the public a splendid way to monitor private citizens who engage in speech on matters of public concern. This gets transparency and accountability exactly backwards, and it degrades the sanctity of anonymous speech, a right that was critical to the founding of our constitutional republic and has proven critical to public reforms ever since. Transparency is a government obligation. Anonymity is a First Amendment–protected individual right.
While private citizens in the U.S. as a general matter don’t face the same risks that members of the NAACP faced in Alabama in the 1950s, free speech still carries with it substantial and increasing perils. You name the hot-button political issue, and you can find people who’ve suffered from boycotts, job loss, harassment, and even physical threats (on both sides of the political aisle). We’ve already stripped anonymity from direct donors to political campaigns, but if the new message to our nation and culture is “you have free speech to address issues only if you’re strong enough to deal with the consequences,” then public discourse will tend to narrow into the lowest common denominator of inoffensive, irrelevant speech or remain the exclusive province of those few people willing to endure unacceptable risks.
Simply put, a robust First Amendment requires substantial protection for anonymous speech — especially speech about political issues. Indeed, “the First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”
Supporters of the law will claim that they’re protecting individual rights through provisions that give the state’s attorney general discretion to restrict public disclosures when those disclosures “may cause harm, threats, harassment, or reprisals,” but this does nothing to preserve anonymity from the government, nor does it protect a right of anonymity from the public. Your right is now a privilege, granted to you by the very officials whose positions you may be attacking and whose priorities you may be frustrating.
If I want to give money to support the cause of life, that’s not the government’s business. If I want to give money to support gun rights, that’s not the government’s business. Indeed, it’s not anyone’s business. In the name of transparency, New York empowers Big Brother. It also empowers hostile mobs. The government isn’t protecting citizens from corruption. It’s corrupting the First Amendment to protect itself.
— David French is a staff writer for National Review, a senior fellow at the National Review Institute, and an attorney.