Jurisprudence

Antonin Scalia Would Be Appalled at What Supreme Court Conservatives Are Arguing Now

A majority of the court seems to think that public criticism of high-dollar donors is the real threat to the First Amendment.

Justice Antonin Scalia speaks at a podium with an American flag behind him
Justice Antonin Scalia speaks at the U.S. Mission in Geneva in 2011. United States Mission Geneva/Flickr

“Requiring people to stand up in public for their political acts fosters civic courage,” Justice Antonin Scalia wrote in 2010, “without which democracy is doomed.” Scalia would be aghast at arguments on display at the Supreme Court on Monday in Americans for Prosperity v. Bonta.

The case constitutes a challenge to a California disclosure law that requires tax-exempt charities to disclose their high-dollar donors to the state attorney general. It does not involve censorship or compelled expression; no one is being silenced or forced to speak against their will. It does not even involve public disclosure; the attorney general is obligated to keep the information confidential. The only alleged infringement on the First Amendment is the possibility that an inadvertent leak by the California attorney general will reveal donors’ names, and they will face accountability for their donations. And yet Monday’s arguments revealed that a clear majority of the Supreme Court is plainly prepared to either block the law’s application to the plaintiffs or strike it down altogether. If Scalia was correct in 2010, then this case is an ominous sign for a democracy that’s already under stress.

Advertisement
Advertisement
Advertisement

The California law at issue in Americans for Prosperity is modest. It requires nonprofits to provide a “Schedule B” disclosure—which contains the names, addresses, and total contributions of “substantial contributors”—to the state attorney general. A “substantial contributor” is defined as someone who gave more than $5,000 to the nonprofit in a single year. But if a nonprofit receives at least a third of its overall support from government grants and public contributions (and many do), the threshold is much higher: Only individuals who contribute more than 2 percent of the organization’s total support are listed. So, for example, a donor to the plaintiff Americans for Prosperity would have to donate $341,000 to be listed on the disclosure form.

Advertisement

Nonprofits are already required to submit Schedule B disclosures to the IRS. California wants the information as well, so the state attorney general can ensure that charities are following through on their promises to donors and not engaging in deceptive practices, including fraud. It keeps the forms in a confidential registry, though its security protocols were not initially airtight: Americans for Prosperity hired an expert who was able to circumvent safeguards and obtain less than 1 percent of the registry’s confidential documents. The expert exploited a vulnerability that Citibank and Delta Air Lines also had to patch. Although the state has fixed this flaw and improved the registry’s security, Americans for Prosperity claims that the information is not confidential at all, insisting that it is “effectively available for the taking.”

Advertisement
Advertisement

These details, omitted from the plaintiffs’ account of the case at arguments, illustrate why it is not just inapt but perverse to compare Americans for Prosperity to 1958’s NAACP v. Alabama. (Unfortunately, the NAACP itself filed a brief that fell into this trap, a fact that several conservative justices gleefully pointed out on Monday.) In that case, Alabama directed the NAACP to turn over its entire membership list to the state; the Supreme Court found this demand unconstitutional, ruling that it infringed on the NAACP’s freedom of association. As a group of legal historians have explained, the court decided NAACP “amidst pervasive private and public violence against Black Americans and white racists’ efforts to prevent them organizing.” The decision was “rooted in thick evidentiary records of violence against NAACP members,” violence often sponsored or tolerated by the state itself. Against this backdrop, the court found that disclosure would subject NAACP members to “bodily harm,” and that this reasonable fear of violence would have a “repressive effect” on the organization’s ability to speak and organize.

Advertisement

Analogizing NAACP to Americans for Prosperity is like analogizing World War II to a playground brawl. Americans for Prosperity is not a vulnerable association of minorities facing violence and oppression; it is a Koch-backed behemoth with a budget of nearly $100 million, a top-notch legal team, and countless allies in the Republican Party. What the group is really seeking is not freedom from violence, but freedom from accountability. Its donors do not want to face scrutiny from the California attorney general or the public. They do not want to face boycotts, protests, and condemnation for financing a conservative organization that helps elect Republican politicians.

Advertisement

Scalia understood the desire of political activists to shield their activities from the public eye, and he scorned it. The justice believed there was no general right to anonymous political speech; anonymity, he wrote, “facilitates wrong by eliminating accountability” and leads to “a coarsening of the future.” He wrote that “evil corporate (and private affluent) influences are well enough checked” only “so long as adequate campaign-expenditure disclosure rules exist.” And in his 2010 opinion in Doe v. Reed, the justice minced no words, writing of the push to topple disclosure laws, “This does not resemble the Home of the Brave.”

Advertisement

Today’s conservative justices take a different view. Time and again on Monday, the conservatives fretted that high-dollar donors might face criticism if their identities are revealed—as if this consequence were constitutionally unacceptable. “In this era,” Justice Clarence Thomas warned, “there seems to be quite a bit of loose accusations about organizations—for example, an organization that had certain views might be accused of being a white supremacist organization or racist or homophobic, something like that, and, as a result, become quite controversial.” He fretted about the “chilling effect” on contributions that would result from “accusations that a particular organization is racist or supports white supremacy.” He asked California Deputy Solicitor General Aimee Feinberg if she thought “it would be reasonable” for a donor to worry about making “a substantial contribution to an organization that has been accused of being racist or homophobic or white supremacist” because they fear public disclosure and reprisals.

Advertisement
Advertisement

Justice Samuel Alito picked up this thread. He noted “the well-known case of Brendan Eich,” who stepped down as Mozilla’s CEO after it was revealed that he gave money to the campaign for Proposition 8, which banned same-sex marriage in California. Alito also noted that other proponents of Proposition 8 faced backlash for their contributions. Justice Neil Gorsuch asked Feinberg if the government could “require private associations to reveal any manner of information—their Christmas card lists, their dating lists, their whatever,” unless they could prove a “reasonable probability of reprisal.” Chief Justice John Roberts raised the hypothetical of a charity “that supports a cause that is controversial.”

“People have said they will make life miserable for anybody who supports that charity,” Roberts continued. “They’ll picket outside their house. They will boycott anybody doing business with them.” Could California give a “100 percent assurance” that big donors’ identities won’t be leaked?

Advertisement

What is bizarre about all of these questions is that the “reprisals” envisioned by the justices are themselves free expression protected by the First Amendment. Boycotts are free speech. Picketing is free speech. Signing a petition telling a company to fire its CEO is free speech. The conservative justices are not only worried about the actual violence that NAACP members faced in 1958. They are not only worried about extreme threats and harassment that give rise to prosecution and civil liability. They are, rather, wringing their hands over plain old constitutionally protected expression. And, even worse, they are favoring the ostensible free speech rights of big donors to give money in secret over the free speech rights of the public to criticize those donations. In the conservative justices’ eyes, anonymous funding of controversial nonprofits merits generous First Amendment protections; the speech that might result from the disclosure of donors, by contrast, is an evil that somehow undermines the First Amendment.

Advertisement
Advertisement
Advertisement

This position is almost certainly a reaction against “cancel culture,” which some conservative justices perceive to be a growing threat. And it shows how an obsessive hatred of “cancel culture” flips constitutional values on their heads. Criticism is not censorship; the constitutional right to free speech does not include a guarantee against hurt feelings. “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance,” Scalia wrote 11 years ago. But a majority of today’s Supreme Court sees “harsh criticism” as an unacceptable assault on free expression—specifically, the kind of free expression favored by this court.

There is another alarming aspect of Americans for Prosperity. As Justice Stephen Breyer put it, summarizing an argument that surfaced in the briefs, “this case is really a stalking horse for campaign finance disclosure laws.” Many of the organizations that want to conceal the names of their donors are allied with politicians and openly partisan groups that also want to keep their donors secret; a ruling against California in Americans for Prosperity could open the door to new lawsuits challenging state and federal laws that force politicians and political organizations to reveal their contributors. A key premise of decisions like Citizens United is that campaign spending does not corrupt elections as long as we know who, exactly, is funding them. Now the court might undermine that promise, using Americans for Prosperity as a “stalking horse” to take down campaign finance disclosure rules.

Based on Monday’s arguments, it’s obvious that the conservative justices are prepared to block the application of California’s law to some groups. It’s not yet apparent, though, how far they’ll go. The details of the decision will determine how many other disclosure rules, including those governing election spending and contributions, can survive at this Supreme Court. But the early signals suggest that the conservative majority is heading in a direction that, according to Scalia, spells nothing less than doom for American democracy.

Advertisement