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Privacy and the Right to Advocate

January 3, 2018

Remembering NAACP v. Alabama and Its First Amendment Legacy

Sixty years ago, on January 15, 1958, the U.S. Supreme Court heard oral argument in National Association for the Advancement of Colored People v. Alabama. The case was just one of several that arose from efforts by Southern states to force the NAACP to turn over the names of its donors to government inspectors. That was a dangerous prospect for the NAACP—then in the midst of its epochal battle against segregation. In fact, the state’s demands had already cost the NAACP more than half its Southern membership over the previous three years, as donors feared that the Association might comply and that their identities might be publicized, leading to ostracism or even violent retaliation.

Legendary civil-rights lawyer Robert L. Carter served as the Association’s general counsel. Using a legal theory he developed while he was a graduate student, Carter convinced the Court to issue a unanimous decision—one that clearly acknowledges the First Amendment right of non-profit groups and their supporters to keep donors’ identities private. Today, that decision stands as both a landmark Supreme Court decision and a highlight of Carter’s storied career, but it left several ancillary issues undecided. Many of these issues have been slowly sorted out by subsequent cases in the Supreme Court and federal courts of appeal, particularly in cases challenging campaign-finance regulations. However, one issue was not resolved by the decision because the state’s argument was so weak that the Court dismissed it out of hand.

Alabama claimed that it needed a list of the Association’s donors in order to determine whether the group was conducting business in the state—something the Association freely admitted it was doing. This argument was so transparently false that the Court did not need to decide how strong the government’s asserted interest in obtaining a list of donors needs to be in order to overcome the First Amendment’s default presumption of privacy.

But what about the public’s “right to know” who donates to non-profit groups that are speaking about ballot issues? Does that interest trump the First Amendment rights of non-profits and their donors? The answer to this question matters a great deal today. States and cities across the country are enacting laws that require non-profit groups to disclose their donors’ names, addresses, and other information any time those groups spend even modest amounts of money to communicate with voters about a question on the ballot. Government claims an “informational interest” in seizing this personal information—arguing that disclosure will help voters make informed decisions when considering a particular group’s message. Federal courts of appeal are divided on whether this “informational interest” trumps the privacy and free-speech rights of non-profits and their donors. That makes the 60th anniversary of the decision a good time to reflect on the case, and to look for clues about how the inevitable Supreme Court case is likely to be decided.

Continue reading the full report here.



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