The Conservatives and Liberals Swap Places on Privacy

Privacy For Me, But Not For Thee.

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Today, the Supreme Court decided Americans for Prosperity Foundation v. Bonta. The Justices split along 6-3 ideological lines. Chief Justice Roberts wrote the majority opinion, and was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Sotomayor wrote the dissent, and was joined by Justices Breyer and Kagan.

If I read the majority correctly, most disclosure laws will be reviewed with "exacting scrutiny," regardless of how severe the burden. There is a vigorous debate between the majority and dissent about Shelton v . Tucker (1960). Justice Sotomayor probably has the better reading of Shelton. Once again, I think the Chief quietly rewrote precedent without acknowledging his moves. Then again, with six votes, Justice Stewart's five-decade-old 5-4 decision didn't stand a chance. The outcome here should not be surprising.

I found noteworthy a few aspects of the case.

First, I think our society has changed in the past decade since Doe v. Reed (2010). And the Court's shift reflected that change. Justice Sotomayor observes:

That disclosure requirements directly burden associational rights has been the view of JUSTICE THOMAS, (dissenting opinion), but it has never been the view of this Court. Just 11 years ago, eight Members of the Court, including two Members of the current majority [Roberts and Alito], recognized that disclosure requirements do not directly interfere with First Amendment rights. In an opinion barely mentioned in today's decision, the Court in Reed did the opposite of what the Court does today.

During the Prop 8 initiative, there were well-documented cases of retribution for opponents of SSM. And the situation has gotten much worse in the past decade. The conservatives on the Court have seen first-hand what happens to conservatives who support conservative causes--especially in the wake of Obergefell. Dare I say cancel culture?

Second, Justice Sotomayor seems miffed that precedents established to help civil rights groups (NAACP v. Alabama) are now being used to protect conservative mega-donors:

The same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support.

She does not see the Koch brothers as deserving of the same protections as members of the Alabama chapter of the NAACP. Privacy for me, but not for thee.

She revisits this theme later:

Privacy "may" be indispensable to the preservation of freedom of association, but it need not be. It depends on whether publicity will lead to reprisal. For example, privacy can be particularly important to "dissident" groups because the risk of retaliation against their supporters may be greater. For groups that promote mainstream goals and ideas, on the other hand, privacy may not be all that important. Not only might their supporters feel agnostic about disclosing their association, they might actively seek to do so.

This contrast between "dissident" groups and "mainstream" groups is stark. I don't know how to distinguish these two categories. Indeed, what may seem "dissident" to one person would be "mainstream" to another. Today, conservative groups in California are closer to dissidents. Right-wingers are the discrete and insular minorities in Sacramento. Social conservatives may even warrant protection under the California Endangered Species Act. Perhaps the state will establish protective habitats. By contrast, social justice groups, including the NAACP, would be "mainstream."

Third, I found unpersuasive Justice Sotomayor's argument that donors might be "agnostic" about disclosing their donations. Perhaps liberal donors who make charitable contributions to "mainstream" socially-acceptable institutions are happy to signal their virtues. But conservative donors do not have those luxuries. Even if the majority of donors are "agnostic," a minority of donors fear retribution. Call them the "dissidents."

Finally, one unrelated note. Not a single conservative Justice blanched at enforcing the so-called freedom of association. This right is premised on substantive due process. Yet, the Court casually refers to it as a First Amendment right. Not so. Justice Thomas made some overtures to the Assembly Clause. But we are dealing with a substantive due process right based on penumbras of the First Amendment. How far we've come.

NEXT: Did Justice Barrett Lose the Majority in the PennEast PIpeline Case?

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  1. I agree the majority opinion overturns orevious precedent without acknowldginv it, and I think Justice Sottomeyor has a point. Under previous precedent, a plaintiff had to make a credible showing that disclosure would result in some sort of objective harm. This decision removes that requirement. But if conservative megadonora could show disclosure that will harm them, then they too could get protection under previous precedent.

    1. Why would any conservative donor have to independently establish such a threat, (Disclosing their identity in the process, I assume.) after Brendan Eich?

      1. Or the Prop 8 donors?

        1. Eich was a Prop. 8 donor, no?

          1. Yes, did not recall his exact "offense".

  2. "In this amicus brief, the ACLU, the ACLU Foundation, the NAACP Legal Defense and Educational Fund, the Knight First Amendment Institute at Columbia University, the Human Rights Campaign, and PEN America argue that California’s blanket demand for tax documents identifying the major donors to nonprofit organizations infringes the First Amendment right to associational privacy, in light of the state’s demonstrated inability to maintain the confidentiality of that information."

    NAACP Legal Defense and Educational Fund?

    NAACP seems familiar for some reason.

  3. "The same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support."

    I didn't like this. Sotomayor made a lot of assumptions about conservative donors that are sweeping and not entirely true. So people who donate are automatically happy about disclosing information? These people weren't.

    And yeah, perhaps the majority didn't make too much of a distinction and that's a problem. But its like saying in NAACP vs Alabama, this isn't an issue because people in NAACP should be happy to disclose that!

    Its just ... not the point. It is so far from the point.

  4. "The same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support."

    Huh?

    I'm pretty sure that the new decision does not prohibit a donor from publicizing the fact of hir donation voluntarily and intentionally.

    -dk

    1. "I’m pretty sure that the new decision does not prohibit a donor from publicizing the fact of hir donation voluntarily and intentionally."

      As they say on Wall Street, DING, DING, DING, DING, DING, DING, DING.

      Anyone who wants to disclose their donations can do so any way they wish. Today with social media, you can announce it to millions with a click of the mouse. The notion that one's rights to privacy is limited by whether Justice Sotamayor believes that you are "only too happy" to disclose would be laughable if it were not so sad.

    2. Sotomayor was trying to claim that because some donors are happy to publish their own names, all donors should be ineligible for the protections offered to the NAACP.

      Not only is it bad logic and bad law, it's bad history. She completely ignores the NAACP members who did self-disclose even in the Jim Crow South.

      I would say that it was an astonishing stupid thing to say but it was Sotomayor so I can't really say that it was astonishing.

      1. Even worse, she acknowledges it is in a context of risking harrassment.

        Basically, "They might be happy to announce it, so it should be automatic they get exposed, and possibly harrassed, since their happiness transparently means they wish to risk it."

        "...ha ha, now we can harrass you!"

  5. NAACP v. Alabama was decided in 1958, before the internet and Internet mobs. Today it is much easier to disseminate information and publicize someone's association with a particular cause or organization. It's probably not more dangerous than belonging to the NAACP in 1958 Alabama but the consequences are real.

    1. The District Court also found that 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.” 182 F. Supp. 3d, at 1057. And although California subsequently codified a policy prohibiting disclosure, Cal. Code Regs., tit. 11, §310(b)—an effort the District Court described as “commendable”—the court determined that “[d]onors and potential donors would be reasonably justified in a fear of disclosure given such a context” of past breaches. 2016 WL 6781090, *5.

      Yup.

      1. And this skips deliberate leaks.

        1. In my experience, far more harm is done by incompetence than by willful maliciousness.

          Here is the point. Given that finding, filing something with the California Secretary of State is the equivalent of posting it on a website for the whole world. That is a reality that did not exist in 1958. So the issue in the case, in my mind, is what if California required you to post all your donors online?

          I think everyone would agree you would need a very strong justification for that, which California lacked.

    2. The District Court also found that 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.” 182 F. Supp. 3d, at 1057. And although California subsequently codified a policy prohibiting disclosure, Cal. Code Regs., tit. 11, §310(b)—an effort the District Court described as “commendable”—the court determined that “[d]onors and potential donors would be reasonably justified in a fear of disclosure given such a context” of past breaches. 2016 WL 6781090, *5.

      This factual finding likely weighed heavily against the State. It's promises of confidentiality are worthless.

    3. NAACP v. Alabama was decided in 1958, before the internet and Internet mobs.

      Buckley v. Valeo held that as-applied challenges would be available if a group could show a ‘reasonable probability’ that disclosure of its contributors’ names ‘will subject them to threats, harassment, or reprisals from either Government officials or private parties.’ Thomas dissented over the disclosure upheld in Citizen’s United. I wonder if we’re moving to a different era on mandatory disclosure of political donors, given Internet mobs and cancel culture.

      1. I think at this point if you're expressing an opinion on anything more controversial than butterscotch vs moose tracks, you've got the reasonable probability requirement satisfied.

  6. Prop 8 won (but it didn’t matter because judges preferred a different outcome and decided they don’t really care much for democracy). Donors to pro-Prop 8 can hardly be said to be "dissidents" when they donated to the side that got the majority of votes. But those donors faced reprisals nonetheless. So the 3 dissenting justices' musings don’t even match history.

  7. It would be reasonable to guess that the conservative justices learned from events over the years that privacy is much more important to free speech than they had originally understood.

    Can we conclude that the liberal justices learned that privacy doesn’t matter for speech and association? What events would have taught them that? I don’t think we can draw such a conclusion. A better explanation is that the three liberals pick the side they want to win and then try to craft some acceptable argument to justify it.

    Does anyone have another plausible explanation for going from pro-privacy to pro-disclosure?

    1. The three 'liberals' valued privacy and the freedom it guards when it was the privacy of left-wingers protected against the right.

      Now that it is the privacy of right-wingers protected against the left? It's much less valuable. Nobody who ought to be protected needs protection from the left, after all.

      1. So rather than the principles being just filler text to make their choices seem judicial, the principles are the same but they simply don’t matter much — and other principles matter much more — when those principles' application might lead to empowerment of (or even fairness toward) the wrong people.

        That’s a different road to the same destination. Either way the wrong people would be denied justice and the full ability to meaningfully participate in civil society by these three justices.

        1. It's called "situational ethics", the high valuation of principles when they support your cause, and the low valuation when they don't, swapped on the fly as you move facetiously from issue to issue.

    2. Its the difference between equality and equity. The two groups can't be treated equally, because then those evil conservatives won't get what they deserve.

  8. They did not reverse their decision. Here is a quote from Doe v. Reed.

    The Court did clarify that the broad ruling, in this case, does not preclude a narrower holding in a future case in which a plaintiff can show "a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.'”

  9. Not a single conservative Justice blanched at enforcing the so-called freedom of association. This right is premised on substantive due process. Yet, the Court casually refers to it as a First Amendment right. Not so. Justice Thomas made some overtures to the Assembly Clause. But we are dealing with a substantive due process right based on penumbras of the First Amendment. How far we've come.

    This is a really good point.

    1. They're chickening out here. Freedom of association is a classic 9th amendment right, unenumerated but clearly a traditional right of Americans. It would be perfectly legitimate to uphold it on that basis.

      Whereas substantive due process is an obscene oxymoron invented to incorporate the Bill of Rights selectively without having the courage to overturn the Slaugherhouse cases.

      But only Thomas has the integrity to want to bite that bullet. The Slaugherhouse cases are a sacred, untouchable mistake so far as most of the Justices are concerned.

      1. It's also a classic penumbra. Not the silly penumbras of Justice Douglas' imagination in Griswold, but a real penumbra. Just like "freedom to read" is in the penumbra of freedom of speech, "freedom to associate" is as well.

        Douglas ruined penumbras because he was so ridiculous about them, but there's nothing particularly horrible about saying "this particular enumerated right also implies the existence of some unenumerated ones".

      2. Freedom of association is a classic 9th amendment right

        The ninth amendment was intended to negate the assertion that the federal government has the authority to legislate in all areas except those specifically denied it. Does anybody really believe that the ratifiers believed that the 9th amendment would give the federal judiciary carte blanche to alter the authority and power of the federal government with no oversight from Congress, the President or the States, and incorporate that with a group of amendments intended to limit the power of the federal government?

        The proponents of “substantive due process” obviously believe that this can only be used to support causes that they agree with. I think the same is true of proponents of using the 9th amendment to do the same thing. They seem to think that this could be nothing other than the libertarian mother lode, but once Pandora’s Box is opened it’s fair game for everybody. That’s the thing about “rights retained by the people.” It’s so open-ended.

        Among those rights must be "safe food, drinking water, and air" and "government-provided comprehensive health care" so these policies will henceforth be dictated by the federal judiciary. The 9th amendment requires that the government live within its means so massive tax increases are ordered (that one winning 5-4 over massive spending reduction).

        1. That's why I said that it was clearly a "traditional" right of Americans.

          The 9th amendment wasn't intended to authorize judges to invent new rights, but it was intended to bar the federal government from taking away rights that existed at the ratification, just because they hadn't been enumerated.

          Do you doubt for a moment that freedom of association would have been considered a right at the founding? Think that anybody would have contemplated for a moment the idea that the federal government was in any way entitled to infringe it? Fraternal organizations, for instance, predate the Constitution. Do you suppose any of the founders would have thought the government could go to a Mason's lodge, and, without a warrant pursuant to the 4th amendment, demand to see their membership roster?

          This isn't inventing a right nobody would have thought of. It's just protecting a right everybody assumed we had all along.

          1. Think that anybody would have contemplated for a moment the idea that the federal government was in any way entitled to infringe it?

            None whatsoever, simply because the federal government’s enumerated powers do not include or imply such a power. This is before the Supreme Court started saying that any connection with interstate commerce, no matter how remote, gives Congress the authority to legislate regarding it.

            Do you doubt for a moment that freedom of association would have been considered a right at the founding?

            Do you mean a right that no legislation could circumvent? In an article on the 9th amendment Raoul Berger quotes from Gordon S. Wood’s treatise The Creation of the American Republic 1776-1787: "individual rights, even the basic civil liberties that we consider so crucial, possessed little of their modern theoretical relevance when set against the will of the people." I tend to be reticent to say that people of that day would have thought that such a “right” would stand against otherwise-valid legislation absent an explicit Constitutional prohibition. It really is just hard to comprehend a right considered fundamental but left out of the explicit enumeration of fundamental rights. How could such a thing be explained? They didn’t have time to include it?

            Would they think that the 9th amendment gave the federal judiciary the right to declare additional constitutional rights? Gordon S. Wood also said that the founders had a "profound fear" of judicial discretion so I think it unlikely that they intended in the 9th amendment to give the judiciary carte blanche to create new constitutional rights. This is especially true given that this is a legislative function, not a judicial one.

            As Justice Black pointed out in Griswold, "th[is] very material ... shows that the Ninth Amendment was intended to protect against the idea that 'by enumerating particular exceptions to the grant of power' to the Federal Government, 'those rights which were not singled out, were intended to be assigned into the hands of the General Government."

    2. IIRC there is ample case law that says the right to association exists to the extent it bears on the right to free speech. That is there isn't a free standing right to association, but when the association in question is in furtherance of speech then infringing on it is infringing on speech (there may also be caselaw linking it to assembly as well).

      But the point is that originalists don't feel the need to justify it as a separate right because at it is being used here it really isn't. I do, however, agree with Brett Bellmore that it is a free standing right recognized as warranting protection by the 9th amendment.

      1. The caselaw divides the subject into two issues: freedom of expressive association and freedom of intimate association.¹

        The first, which you are discussing, is — as you say — derived from the assembly and speech rights. That’s saying that you have the right to put out a message collectively, which means you have the right to associate with (or not associate with) people who will help (or hinder) that message. If the KKK were forced to admit blacks, it would rather dilute their message. That's Hurley or Dale — you can't force a parade or the Boy Scouts to admit gay people if these groups have an anti-gay message. For that right to apply, your group must actually have a message, and association must be required in order to advance it. It need not be your group's sole message — the Boy Scouts have lots of notions besides gay = bad — but it must actually be a message.

        The second is a more purely association related issue: I have the right to be friends with who I want to be friends with, or not, regardless of any message. It's sometimes attached to the first amendment, but also derives from the right to privacy. Obviously few or no government bureaucrats have yet tried to force people to be friends with other people, so this typically comes up in the context of social clubs or the like. (And yet in analysis it often collapses into expressive association.)

        ¹One could also discuss religious association, but that's generally treated as a combo free exercise/non-establishment issue rather than analyzed under a freedom of association framework.

    3. Not a single conservative Justice blanched at enforcing the so-called freedom of association.

      But nobody was asking that NAACP v. Alabama be overruled. When justices discuss the meaning of prior precedent do they usually pause and announce that they are holding their nose with respect to that precedent if they might not have supported it as a matter of first impression?

  10. We know how Soros and Gates are spending money. They need a visit from guys driving 1986 Camaros.

  11. If anyone (as the libs in the media are arguing tonight) thinks this is not a direct result of cancel culture then they are just in plain denial at this point....

  12. Seems like a policy choice that should be made by self-governing people through their State governments, rather than imposed on 330 million people in 50 different states by unelected judges.

    1. Having a bill of rights was a policy choice, yes, but we made that choice over 200 years ago, and it wasn't unelected judges who made it.

      I'm opposed to unelected judges undoing that choice by refusing to enforce it.

  13. Progressive activists may have scored an own goal with their well-publicized broadcast of legally protected tax returns just a couple of weeks before this decision was due. This timely reminder of the flimsiness of government guarantees of confidentiality may have made the difference between this substantive ruling and a largely useless micro-decision (cf. Masterpiece Cakeshop).

    1. The same thing happened with the recent leak of federal tax info reported by ProPublica, yet the IRS is not likely to lose its ability to demand the names of donors to charities.

      1. On the other hand, the security of the California Schedule B's appears to have been egregiously lax.

  14. "Justice Sotomayor seems miffed that precedents established to help civil rights groups (NAACP v. Alabama) are now being used to protect conservative mega-donors:" "She does not see the Koch brothers as deserving of the same protections as members of the Alabama chapter of the NAACP. Privacy for me, but not for thee."

    This thought process and justification for a SCOTUS opinion outcome should never be accepted. Wrong regardless of the Justice, issue, or outcome. It is contrary to equal justice, equal protection, due process, and any notion of liberty.

    It would be shocking to many to think that civil rights include protecting opinions and outcomes you like and those you don't like. Justice Scalia stated that a law may be constitutional but stupid. It is wrong to start with an outcome and then go looking for a justification that can conceivably be fashioned into a legal justification. This is true regardless of the political perspective.

  15. So what’s the bottom line here? That the feds can demand this information but the states can’t because, unlike the feds, the states are partisan hacks who can’t keep a secret?

  16. The dissenters are saying that the identities of those donating to a campaign to defeat Proposition 8 should be protected, but not the identities of Proposition 8 supporters. How's that for equality before the law?!

  17. David Cole, ACLU National Legal Director, in response to Americans For Prosperity Foundation v. Bonta, tweeted:

    Well, the Court managed to rise above the partisan divide this term until the last day, when it got to voting and dark money. Today, the Court divided 6-3 along partisan lines, making it harder to prove voter suppression, and easier to hide large donations.

    This became somewhat awkward given that the ACLU had filed an amicus brief supporting the Petitioners’ challenge to the California disclosure requirement. However, their brief urged “as-applied” relief, saying that the “facial” relief that the Court decided on was premature at this stage. The dissent in that case said that they would have signed on to “as-applied” relief.

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