By Emily Seidel
July 19, 2021 at 5:00 am ET
Free speech brings together unlikely allies; look no further than the Supreme Court.
In a case decided this month, a vast array of organizations – nearly 300 in total – filed amicus briefs supporting the First Amendment, including the American Civil Liberties Union, the NAACP, the Human Rights Campaign, Becket Fund, PETA and Institute for Justice. As the court noted: “Far from representing uniquely sensitive causes, these organizations span the ideological spectrum, and indeed the full range of human endeavors.”
The case is Americans for Prosperity Foundation v. Bonta. And the justices struck down California’s attempt to obtain lists of people who support the organization I lead. The decision upholds the right of every American to support causes without fear of government harassment or ideological intimidation.
While the Supreme Court’s recognition of civil liberties is important, it’s just as important that Americans engage to understand why this decision is so critical for our country’s continued progress.
Why do nonprofits want to protect the identity of donors? Because putting their supporters on government lists threatens their ability to advocate for their beliefs. That was true when the Supreme Court took up this issue in 1958. In that case, NAACP v. Alabama, the justices blocked segregationist state leaders from obtaining the names of civil rights activists. Recognizing that these sorts of disclosure demands are likely to chill First Amendment freedoms, the court held that the government cannot make blanket demands for the production of sensitive associational information without a persuasive justification. While the dangers civil rights activists confronted in challenging Jim Crow were unique, the Supreme Court this month made clear that the constitutional protections established in NAACP v. Alabama continue to reverberate across the ideological spectrum.
Take the Council on American-Islamic Relations. It told the court that Muslims in America are endangered by government attempts to catalogue people’s activities and associations. The ACLU and NAACP said that such government demands “seriously diminish” people’s right to “organize to defend values out of favor with the majority.” Another brief, signed by groups ranging from Charity Navigator to the Southern Poverty Law Center, made clear that shifting political winds and elected officials mean that groups must constantly be afraid of “threats, harassment, reprisals, and even political targeting,” especially those engaged on “controversial issues unpopular at the time.”
What issues might those be? Who would have to fear the most? Take your pick. Historically, the opponents of Jim Crow laws or the supporters of marriage equality would have been easy targets. Today, it could be advocates for racial justice, criminal justice reform or government accountability, to name a few. In some states, the advocates of socialism could be targeted. In others, it could be the defenders of economic freedom. People whose views are in vogue today could find themselves the targets of vicious personal attacks or even violence tomorrow.
America’s progress would inevitably falter in such a world. Absent a right to privacy in association, people would be forced to choose between staying safe or speaking up and amplifying their voices through organizations representing their beliefs. They’d find it harder to unite and call for the change our country needs. Yet joining forces with others, whether publicly or anonymously, has always been a key part of America’s forward march toward a society of equal rights and mutual benefit. From the Federalist Papers to the civil rights movement to our own time, people have banded together to demand a better way — sometimes choosing anonymity to open the door to progress.
Their identities were far less important than their ideas, and because they had the right to keep the former private, the latter transformed America.
Some commentary on this case has relied on the crude partisan framework of “right versus left.” It’s an easy narrative, but a false one. The real divide is between those who want diverse voices in the public square and those who want to stifle debate – a division that defies political affiliation. Americans of all views stand to benefit from this ruling, especially those who believe in things the country may need but isn’t ready to embrace.
The country still has a ways to go, as the past few years have made clear. There are still many barriers that block people from fully sharing in America’s promise. Breaking them down would be much more difficult without the Supreme Court’s decision. In the contest of ideas, Americans need the maximum freedom to share in the national debate.
That’s especially true in this challenging time. America needs a vigorous discussion about the best way to solve the many problems facing our country. Thanks to the Supreme Court, more people will be able to add their voices to the conversation without fear. It’s not just an important win for the First Amendment — it’s a profound victory for America’s future.
Emily Seidel is CEO of Americans for Prosperity Foundation.
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