by Matt Miller
February 14, 2019
Last week, the Goldwater
Institute represented two nonprofit organizations—the Colorado Union of Taxpayers
Foundation and the TABOR Committee—in a Denver bench trial in Denver, Colorado
with implications for privacy, free speech, and the public’s “right to know”
the identities, occupations, and employers of nonprofit donors. As
I discussed last week, the centerpiece of the trial was testimony from four
different individuals who have worked in the nonprofit world for decades—testimony
that centered on various forms of ideological harassment that each of them has
endured over the years. I won’t recount that testimony here since it was the central
element of my earlier post, but suffice it to say that the testimony was vivid,
compelling, and painted a troubling picture of what some nonprofit employees
endure at the hands of people who disagree with them.
The question at the
trial was: Can nonprofit donors be forced to endure similar harassment and
intimidation simply for supporting causes they believe in? That question is
raised by a Denver law (and similar laws in Santa Fe, Phoenix, and Tempe,
Arizona) that requires nonprofit groups to disclose donors’ identities to the
government whenever those groups spend more than $500 to support or oppose a
local ballot measure. If a group spends more than $500 on Facebook ads,
postcards, newspaper ads, a website, a YouTube video, or any other method of
communicating with voters, that group must file a long series of reports, which
must include the name and address of anyone giving more than $50 to fund the
effort, and the employer and occupation of anyone giving more than $200. Denver
then posts this information on the Internet, forever accessible to the public.
Talk to most nonprofit
groups, and they will tell you the same thing: “If disclosing our donors is the
price for speaking, we will choose to remain silent.” Indeed, that is exactly
what the plaintiffs said in the Denver trial. But this is really no choice at
all. Nonprofits are being forced to choose between two equally unconstitutional
options—silence, or disclosing the personal information of their supporters.
Everyone understands
that censorship is unconstitutional. But so is forced disclosure of supporters.
Publishing someone’s name, address, occupation, and employer on the Internet,
and linking that information to a particular ideological cause—like support for
abortion rights, or support for gun rights—exposes that person to the risk of
harassment by people opposed to the causes they support. That is what last
week’s testimony was about. It showed that there are people out there who are
willing to spit on you, throw a football-sized rock through the window of your
car, and ask if you “know what you’ll find when you get home tonight”—just
because they disagree with you.
Unfortunately, the
plaintiffs lost the trial on standing grounds. The court did not reach the
merits of the challenge. Instead, the court ruled
that the nonprofit groups had not yet been prosecuted under the law and
that—despite substantial testimony to the contrary—they had not shown they were
likely to run afoul of the law in the near future. The plaintiffs will appeal
this ruling because it is contrary to established free-speech standing
doctrine, which says that someone need not wait until they are censored before
they can challenge a law that violates their right to free speech.
To understand why
pre-censorship challenges are permitted, consider another
Goldwater Institute case in Santa Fe, New Mexico. The plaintiff in that
case, the Rio Grande Foundation, ran afoul of Santa Fe’s donor-disclosure law
when the Foundation promoted a website and YouTube video encouraging voters to
reject a proposed soda tax. The Foundation was ultimately hauled before the
city’s Ethics & Campaign Review Board for a miniature trial, then censured
and order to disclose its donors.
The soda tax issue represented
the first time the Foundation engaged on a Santa Fe ballot measure. The first
time it spoke to Santa Fe voters, it ran afoul of the law. If the Foundation
had known about the Santa Fe ordinance before it spoke, the group would
have been permitted to challenge the ordinance as a violation of the First
Amendment (which it has subsequently done). A pre-enforcement challenge would
have allowed the Foundation to ensure that it would never have to
disclose its donors.
That is precisely what
the plaintiffs in the Colorado case were trying to do. They testified that they
would like, and were likely, to work on future Denver ballot measures. And they
testified that they could and would spend more than $500 to do so. But this
testimony did not convince the trial court, which applied traditional standing
rules to their claims, rather than the specialized rules that exist to protect
free-speech rights before a speaker is forced to make an
unconstitutional choice.
The CUT Foundation and
the TABOR Committee will be appealing the trial court’s decision. Their
case—like the Santa Fe case—will help ensure that Americans cannot be forced to
put their information on a government list simply because they choose to
support a cause they believe in.
Matt Miller
is a Senior Attorney at the Goldwater Institute. He represents the plaintiffs
in Colorado
Union of Taxpayers Foundation v. City of Denver.
