Goldwater Institute lawyers will argue in the Arizona Supreme Court next month against the constitutionality of Prop. 211, a state law that forces people who donate money to nonprofits that speak about political issues to have their names, addresses, and other personal information posted in a publicly accessible database—thus becoming targets for retaliation and even violence—which violates the freedom of speech and privacy rights guaranteed by the state Constitution.
Donor “disclosure” mandates like Prop. 211 are often sold as ways of ensuring “transparency”—but the reality is that they scare people away from expressing their opinions, lest their personal information be publicized, subjecting them to retaliation harassment and ostracism. Lawyers call this a “chilling effect,” and it’s unconstitutional. But Prop. 211 imposes a significant chill—one that not only violates the rights of individuals, but also undermines democracy.
A slew of state and national groups have now filed friend-of-the-court briefs on both sides of this closely watched lawsuit—and that gives us the opportunity to respond with interesting and important observations about the critical importance of these constitutional rights. Here’s a look at these briefs in alphabetical order:
Arizona Chamber of Commerce: The Arizona Chamber filed a brief in support of our clients, detailing the rise of the “cancel culture” movement, and showing that “anyone who contributes financially to a ballot proposition in compliance with Prop. 211’s disclosure requirements exposes themselves to risk of intimidation, ostracization and reeducation.” Where our case focuses primarily on the Freely Speak Clause and the Private Affairs Clause of the Arizona Constitution, the Chamber points out that two other clauses, which protect “secrecy in voting” and “the right to vote by secret ballot” also support our position. These clauses show that “the framers intended to secure privacy protections for political views, in large part to preclude the type of intimidation” represented by modern cancel culture. Moreover, the Chamber observes, while anti-privacy activists often argue that disclosure mandates provide “information” to voters, there’s actually little evidence that voters use such information. They have plenty of other ways to learn about the costs and benefits of ballot initiatives, and stripping people of their privacy rights if they donate to a ballot initiative campaign doesn’t do much to help—but does care people away from speaking their minds.
Americans for Prosperity: Americans for Prosperity was involved in the vitally important AFP v. Bonta case in 2021, which struck down efforts by California’s Attorney General Kamala Harris to strip advocacy groups of their privacy—efforts that actually were successful, and led to numerous instances of harassment and even violence against donors to these organizations. One interesting part of AFP’s brief in this case is their observation that Prop. 211’s reach isn’t limited to Arizona. It requires disclosure of information about “original donors”—that is, individuals who may have no connection to an organization but whose initial contribution goes to someone and then to someone else and then to someone else, and then to that organization. This “little old lady who swallowed the fly” approach means, as AFP puts it, that if someone donates to a church, and the church then donates to the NAACP, and the NAACP later encourages people to vote for a ballot initiative, the original donor to the church will lose his privacy rights, even thought he had nothing to do with the initiative campaign. Not only does that violate people’s rights for no good reason, but it actually “confuse[s] and mislead[s] voters contrary to [Prop. 211’s] claimed purposes—burying in an undifferentiated donor listing whatever subset of donors may have given directly for the purpose of sponsoring a particular communication.”
Buckeye Institute: The Buckeye Institute filed a brief describing instances of the harassment and intimidation that donors and organizations are subjected to when their private information is publicized under laws like Prop. 211. The litany of offensive, frightening, and even deadly attacks Buckeye describes range from arson at both pro-life and pro-choice organizations, plots to murder people at social conservative groups and fertility clinics—and even efforts to “dox” the owners of Tesla cars so that people opposed to Elon Musk’s political views can vandalize them. “In short,” writes Buckeye, “the ‘deterrent effect’ that disclosure of membership and donor lists has on ‘the free enjoyment of the right to associate’ is even more significant in today’s Internet age than it was when the United States Supreme Court decided cases like NAACP v. Alabama ex rel. Pattersonv, Shelton v. Tucker, and Talley v. California. The Court must consider this changed technological landscape and political realities when addressing this case and others like it.”
Citizens for Responsibility and Ethics in Washington: Coming in against our position, CREW argues for the need to “trace” funds that are spend supporting or opposing ballot initiatives, “[g]iven the risk of corruption from significant independent spending and the general ability to earn ‘special favors’ outside of quid pro quo transactions.” But as we argue in our response to this brief, this argument would effectively require the disclosure of all private information about anyone, since anyone might be given a “favor” by the government. Not only is there no limit to CREW’s argument for “tracing” (you “trace” a dollar back from one person to the next to the next), but the U.S. Supreme Court has already rejected the argument CREW makes for preventing “influence”—because democracy is all about trying to “influence” the government. CREW’s argument against constitutional privacy rights is especially rich given that CREW itself keeps the identities of its donors secret; as influencewatch.org says, “CREW does not reveal its donors, so funding sources for the organization cannot be easily confirmed.” They’re right to preserve the privacy rights of their donors—too bad they’re trying to prevent other groups from doing the same.
Institute for Free Speech: One of the nation’s leading organizations defending donor privacy, the Arizona Supreme Court not to rely on federal law to decide this case, as state courts often do. As IFS points out, federal courts have adopted various legal theories such as “exacting scrutiny,” which are so vaguely defined that lawyers and judges often have to guess at their meaning. Such theories “let judges decide how much of a burden on speech is too much, or what government interests are important enough to override the constitutional text.” But the Arizona Constitution protects speech more broadly than does the federal Constitution, and there’s no good reason to import vague, confusing, and often contradictory federal theories into state law.
John Leshy and Other Legal Scholars: Law professor John Leshy and a group of other law professors filed separate briefs against us, arguing that the Arizona Constitution’s framers cannot have believed that its Freely Speak or Private Affairs Clauses would protect the privacy rights of donors. But as we explain in our combined reply, their arguments are a mix of factual misstatements and misrepresentations of this case. They ignore the difference between campaigns for public office on one hand and campaigns for ballot initiatives on the other—a critical difference for this case, since our clients do support and oppose ballot initiatives but don’t coordinate with candidates for public office. In our brief we show that as far back as 1912, Arizona law treated these things differently—even in 1914, when a Prohibition Party candidate ran for governor and there was a prohibition initiative on the ballot, the candidate submitted information about his donors, but the initiative campaign didn’t have to. The fact that the framers of Arizona’s Constitution saw these as different things supports our contention that the privacy right in the constitution applies to our clients even if it doesn’t apply to candidate elections. But perhaps the most astonishing part of the legal scholars’ brief is their argument that the constitution’s framers cannot have believed in privacy rights for donors because in 1917, the state passed a law criminalizing anonymous speech. That’s true, it did—and that law was flagrantly unconstitutional! It’s revealing that the professors’ argument in favor of Prop. 211 depends on ignoring the constitutionally protected right of anonymous speech.
Make Liberty Win and Young Americans for Liberty: Because Prop. 211 mandates public disclosure of information about donors to organizations that speak about candidates—not just to organizations that are coordinating with candidates—it goes much farther than the kind of disclosure requirements courts have allowed. MLW and YAL’s brief argues that the court should interpret Prop. 211 narrowly, as applying only to “earmarked” donations—that is, contributions that are intended by the donor to be spent only for a particular campaign—which might otherwise skirt the laws against direct contributions to candidates. This interpretation, they argue, would “avoid unconstitutionality.” While it’s not clear that such an approach would resolve the privacy concerns at the heart of this case, it would certainly be a better outcome than the no-privacy approach the government is taking in the case.
City of Phoenix: The City also filed a brief opposing our position, arguing that forcing donors to disclose their private information as the cost of free speech is good because it helps “inform” voters. As we explain in our reply, neither the federal Supreme Court nor the Arizona courts have ever endorsed this “informational interest” theory in the context of ballot initiatives—and that’s a good thing. Compulsory disclosure can be misleading and manipulative. As Justice Alito once pointed out, if voters should be “informed” about who supports or opposes a political viewpoint, then why not force people to disclose their racial or religious information, or even whether they’re gay or straight, as a condition of allowing them to express their views? The reality is that there’s good reason to protect the privacy rights of people who express their political views. Even more striking about this brief is the City explicitly urging the justices to decide the case based on political polling instead of the law—a profoundly cynical and inappropriate argument to make.
Fife Symington and other politicians: Former Arizona Governor Fife Symington and other former office-holders also filed a brief against us, arguing that it’s important to force people to give up their privacy as the cost of expressing their political opinions, because that helps politicians to respond to their critics. But as we explain in our response brief, anonymous speech is a constitutionally protected right in Arizona, and one reason why is to prevent retaliation against people who speak their minds. Unfortunately, such retaliation is all too common in today’s world.
We’re grateful for all our friends-of-the-court, and we’re looking forward to the hearing on September 11 at 10:30 a.m.
