The Arizona Supreme Court today issued a landmark decision recognizing that the Arizona Constitution provides an independent source of protection for free speech and allowing a constitutional challenge to Arizona’s donor disclosure law to proceed. In doing so, the court recognized that the nonprofit and donor plaintiffs do not surrender their privacy rights simply because they contribute money to causes they believe in.
Although the court rejected a broad facial challenge to Proposition 211, it held that the plaintiffs—the Center for Arizona Policy, the Arizona Free Enterprise Club, and anonymous donors—had sufficiently alleged that the law violates Arizona’s constitutional guarantee of free speech as applied to them. Proposition 211 forces nonprofits that speak about a ballot measure or mention an incumbent lawmaker near an election to disclose to the government their donors’ names, addresses, employers, and donation amounts.
The case now returns to the trial court, where the plaintiffs will have the opportunity to prove that compelled disclosure chills speech in violation of the Arizona Constitution.
In doing so, the court made clear that the Arizona Constitution is not merely a mirror of the First Amendment. Instead, it emphasized that Arizona courts must independently interpret the protections guaranteed by the Speak Freely Clause, explaining that “[t]he Speak Freely Clause tolerates no censorship or restraint…for speech that falls within the Clause’s protective scope.”
The court also recognized that donating to organizations for the purpose of funding policy speech constitutes protected expressive conduct under the Arizona Constitution and reaffirmed that the Speak Freely Clause broadly protects against laws that chill protected speech.
Justice Kathryn Hackett King’s dissent—joined by Vice Chief Justice John Lopez and Justice Clint Bolick – underscored the fundamental constitutional interests at stake, explaining that “[e]ngaging media before an election to publicly communicate about candidates, ballot measures, or recalls of public officials is core political speech – not an abuse. Speaking anonymously is a principle that contributes to liberty – not an abuse.”
“This is an important victory for every Arizonan who believes people should be free to support the causes they care about without fear of government-compelled disclosure,” said Scott Freeman, Senior Attorney at the Goldwater Institute, which represented the plaintiffs. “The Arizona Supreme Court recognized that our state constitution independently protects free speech and that citizens are entitled to prove that compelled donor disclosure violates those protections.”
The plaintiffs include the Center for Arizona Policy, the Arizona Free Enterprise Club, and anonymous individuals who alleged they reasonably feared harassment, retaliation, and intimidation if their identities were publicly disclosed because they supported organizations engaged in public policy advocacy.
“Today’s decision establishes that the Arizona Constitution is an independent source of liberty,” said Andrew Gould of Holtzman Vogel, who argued the case on behalf of the plaintiffs. “The court made clear that Arizona courts are not simply bound to follow federal free speech doctrine, and it recognized that plaintiffs may challenge compelled donor disclosure when it chills protected expression.”
The case now returns to the superior court for discovery and factual development on the plaintiffs’ as-applied challenge. At that stage, the plaintiffs will have the opportunity to demonstrate that Proposition 211’s disclosure requirements subject their supporters to threats, harassment, reprisals, or other harms that unconstitutionally burden free speech and freedom of association.
Recent years have seen increasing incidents of harassment, intimidation, “swatting,” vandalism, and violence directed at individuals and organizations because of their political or religious beliefs. The plaintiffs contend that compelled disclosure of donors creates a substantial risk of exactly those harms and discourages citizens from participating in public debate.
“From the very start, this case has been about protecting the freedom of everyday Arizonans,” said Peter Gentala, President of Center for Arizona Policy. “No one should have to choose between supporting a cause they believe in and fearing harassment, retaliation, cancellation, or personal safety. Today’s decision affirms what we’ve always known to be true: our constitutional freedoms belong to every one of us, not just to those whose views happen to be popular at the moment.”
Scott Mussi, President of the Arizona Free Enterprise Club, added: “Free societies depend on people being willing to speak, advocate, and support important causes without fear of retaliation. Today’s decision ensures that Arizonans will have the opportunity to demonstrate that the Arizona Constitution protects those freedoms.”
The decision also reinforces a principle central to the Goldwater Institute’s mission: state constitutions are independent guarantees of individual liberty and, in appropriate cases, provide protections beyond those recognized under federal law. The Arizona Supreme Court’s decision establishes an important framework for future free speech litigation and confirms that compelled disclosure laws remain subject to meaningful constitutional scrutiny under Arizona’s Speak Freely Clause.
Learn more about the case here.
