First Amendment Protects Free Speech, Not Government Snooping Print
By Timothy H. Lee
Thursday, May 06 2021
California preposterously claims that it can guarantee the security and privacy of the donor information it seeks to aggregate, but during litigation of the case almost 2,000 private donor forms were uncovered via the internet, exposing nearly 350,000 files.


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;  or abridging the freedom of speech, or of the press;  or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let’s get something straight that should be obvious.  

The First Amendment protects your individual natural right to free speech, free assembly or association with others and freedom to petition government.  

The First Amendment does not protect government’s power to collect, warehouse or misuse intimate details on your political activity.  Nor does it protect your neighbor’s desire to snoop into your private political activity or examine which causes you support.  

Where the two concepts stand in tension, therefore, the former must prevail over the latter.  Yet somehow, the political left believes the reverse to be true.  

One would’ve thought that question settled by the straightforward text of the First Amendment itself.  

Or by the U.S. Supreme Court in 1958 with its unanimous ruling in NAACP v. Alabama.  In that case, segregationist government officials demanded that the NAACP publicly disclose its private membership lists to the state.  For obvious reasons, however, the Supreme Court recognized that “outing” people for causes or organizations they support would unconstitutionally chill their First Amendment rights and expose them to targeting and abuse by government or fellow citizens:  

This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.  Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order.  Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.  

Since that unanimous ruling, unfortunately, courts and government officials have slowly chipped away at its enduring logic with constitutional abominations like McCain-Feingold and similar laws at the federal, state and local levels.  In a more recent example, Senator Sheldon Whitehouse (D – Rhode Island), in his ongoing theater of constitutional and intellectual repugnance, has proposed legislation that would require organizations filing legal briefs before the judiciary branch – petitioning government under the First Amendment – to not only register with the government but also surrender the identities of donors.  

Apparently, Senator Whitehouse thinks that NAACP v. Alabama came with an expiration date.  

Amid this onslaught of efforts to silence free speech and association through forcible public exposure, however, there’s good news to report.  The Supreme Court, which now includes Justice Amy Coney Barrett, has an opportunity this term to reaffirm NAACP v. Alabama and make clear to people like Senator Whitehouse that the First Amendment means what it says.  

The case of Americans for Prosperity Foundation (AFPF) v. Rodriguez centers on California’s requirement that nonprofit organizations surrender donor identities to state officials.  California contends that it needs to possess donor details in order to detect fraud, but nothing stops authorities from seeking subpoenas or audit letters.  Indeed, as AFPF notes in its brief, “Forty-seven other states rely exclusively on those case-specific mechanisms to obtain donor information for fraud investigations” when necessary.  

Moreover, California preposterously claims that it can guarantee the security and privacy of the donor information it seeks to aggregate, but during litigation of the case almost 2,000 private donor forms were uncovered via the internet, exposing nearly 350,000 files.  

In an era of “Cancel Culture” targeting conservatives and even moderate liberals who happen to upset the angry left, the risk of exposure via a simple internet search is simply unacceptable.  And keep in mind that in recent years Internal Revenue Service (IRS) officials like Lois Lerner persecuted conservative and pro-Israel organizations by exploiting records and donor information in their possession.  

Then again, that’s a risk that officials advocating compulsory donor disclosure don’t just tolerate, but actively encourage.  

Unbelievably, the Biden Administration even seeks an $80 billion infusion of cash to the IRS so that it can increase its power to target American taxpayers.  That’s hardly the sort of “stimulus” that Americans thought they were getting when they elected the supposed “moderate” Joe Biden last November.  Enlarging the IRS, especially given its recent record of politicized abuse, wasn’t atop voters’ wish list.  

Regardless, the simple fact is that Americans possess an individual freedom of speech and association.  Others have no corresponding right to inspect or expose how you exercise those freedoms.  

If leftist politicians like Sheldon Whitehouse can’t internalize that simple truth, hopefully the Supreme Court this term will issue that necessary corrective.