Technology seems to have recreated the problem of the small republic, such that the large republic is now susceptible to the disease of faction.
Last month, the Supreme Court decided Americans for Prosperity Foundation v. Bonta, the latest freedom of association case. While Chief Justice Roberts’ opinion for the Court concludes rightly that states cannot require charities to submit donor information to the government, it misses an opportunity to ground that freedom more firmly in the text and history of the First Amendment. As such, the reasoning of the case is a disappointment, although there are indications that the Court is headed in a better direction in the way it handles freedom of association cases.
The state of California required organizations to disclose the names and addresses of major donors. Petitioners refused to submit the appropriate forms without redacting their donors’ names. This did not present a problem until 2010, when the California Attorney General’s office stepped up its enforcement effort and fined the charities for violation of the disclosure requirement. Petitioners filed suit arguing that the requirement to submit major donor information was a violation of their First Amendment rights. California argued that having charities’ major donors on file helps the office when it investigates misconduct. The District Court granted an injunction against the state enforcement of the disclosure requirement and the Ninth Circuit Court of Appeals reversed and remanded, directing the District Court to reject Petitioners’ facial challenge. After a back and forth, the Supreme Court granted cert and reversed the Ninth Circuit, finding that the donor disclosure requirement was facially unconstitutional.
The Court’s opinion, though, presents two disappointments in its reasoning. First, the Court ruled on this case as a freedom of association case, rather than a freedom of assembly case. This matters because freedom of association appears nowhere in the First Amendment, whereas freedom of assembly has its own clause. Ruling on assembly would have grounded the right in the text of the First Amendment. This move was entirely predictable, given that the Court hasn’t ruled on the Assembly Clause in decades, but disappointing nonetheless.
In addition to the lack of any recent Assembly Clause jurisprudence, there is also the fact that member disclosure is the first issue around which the Court ruled on freedom of association, making for a close precedential alignment. In NAACP v. Alabama (1958), the Court ruled that the Constitution’s requirement of privacy in associations forbade the state of Alabama from requiring the NAACP to submit its membership list to state authorities. The donor disclosure issue in Bonta is close enough to NAACP that rather than rethinking its jurisprudence on assembly and association, the majority could opt to just model the opinion after NAACP and come to the right conclusion.
The Court was right, of course, to rule for the NAACP. The government should lack the authority to require that organizations divulge their member lists. However, its decision to articulate a non-textual right of association, rather than to explicate the textual right of assembly mired the Court’s jurisprudence in confusion. While it seems obvious enough that associational freedom should be constitutionally protected, the Court’s refusal to locate the right in the Assembly Clause left it struggling to find a textual anchor, looking to the Fourteenth Amendment before turning to the First. Finally, the Court settled on the Speech Clause and developed the concept of “expressive association,” significantly narrowing the right of association to only those associations that it deems appropriately “expressive.”
This move by the Court to articulate a separate, non-textual right, was unfortunate. The Court had rendered the Assembly Clause moot through a series of complicated jurisprudential and historical errors, which it failed to correct. As John Inazu argues in Liberty’s Refuge, freedom of assembly is in the text of the First Amendment and its history and jurisprudence indicate that it provides protection for groups like the NAACP by providing a broad right of association. This right was essential to religious liberty, and it was appealed to as early as the 1790s in defense of Democratic-Republican groups, as Justice Thomas noted in his concurrence, citing the Becket Fund’s amicus brief.
The second disappointment is the majority’s choice to decide this case on the basis of “exacting scrutiny” rather than “strict scrutiny,” as it generally does in First Amendment cases. The Court noted that the difference between exacting scrutiny and strict scrutiny is whether the government must demonstrate a narrowly tailored means to accomplish the government’s interest or whether it must meet the higher standard of “least restrictive means.” Accepting a lower standard of scrutiny, even while arriving at the same conclusion to the case, indicates that freedom of association is a lesser right than others protected in the First Amendment. A higher standard, as Justice Thomas intoned in his concurrence, would have put the freedom of association on a more secure constitutional footing, and one it deserves given the textual place it should have in the Assembly Clause.
That said, the Court’s definition of exacting scrutiny was still much stricter than the dissent would have allowed, and the Court was insistent that the “risk of a chilling effect on association is enough” to violate the First Amendment. As Justice Alito wrote in his concurrence, “[T]he exacting scrutiny standard . . . has real teeth.” He further intimated that he was sympathetic to Justice Thomas’s call for strict scrutiny, although he expressed doubt that the Court’s decisions spoke definitively on what standard should be applied in this case.
So much for disappointments in the case. What is hopeful in the opinion?
While the Court appeals to the general right of association, it does not attach the right explicitly to the Speech Clause as it did in previous freedom of association cases, such as Roberts v. Jaycees, Boy Scouts v. Dale, and Christian Legal Society v. Martinez. While it is true that these cases dealt with the exclusion of persons from membership for expressive purposes and therefore can be distinguished from the current case, the Court had ample opportunity to tie this case in to the ability of donors to support viewpoints anonymously, or something like that. But it didn’t. The organization decided that it wishes to keep its donors’ identity private.
There are a plethora of reasons to do so, including religious motivations (to please God rather than man), donor modesty, and protection of donor interests (such as retaliation). The last is the official reason the groups gave. The question is, should the primary decision maker in this matter be the organization itself or the government? Here, the Court points to the group itself. The government must reach a high standard to overcome the group’s objection. It seems like the majority is tending toward an understanding of associational freedom that has at its heart the internal autonomy of the organization, which means permitting it to determine through its own practices how it wishes to proceed.
In the future, the Court should reverse the two disappointments outlined here, first, by anchoring associational freedom in the Assembly Clause and granting it equal constitutional protection as the other First Amendment rights. As the Court wrote in DeJonge v. Oregon (1937), “[T]he right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” That sentiment should guide the Court moving forward. Second, placing the associational freedom in the Assembly Clause alongside its textual brethren in the First Amendment would require heightened scrutiny and it would invite an inquiry into the nature of a broad freedom of associational autonomy, the ability of groups to govern themselves according to their own internal principles and concerns.
This is a much sounder understanding of the meaning of associational freedom. As I argue in Why Associations Matter, the concept of “functional autonomy,” liberty in the internal governance of the organization, properly defines associational freedom in this manner. This would come much closer to satisfying the requirements of a revivified Assembly Clause. By focusing on function, the Court would recognize that there are many constitutional purposes beyond expression for which organizations may practice their right of assembly and that to do so they require autonomy as to their internal governance.