Cancel Culture on Trial

An important case will be heard this term at the Supreme Court out of the Ninth Circuit—and the stakes could not be higher. Americans for Prosperity Foundation v. Becerra challenges a California Office of Attorney General’s lawless demand for non-profits’ donor lists that displays a shocking determination to eviscerate one of the landmark civil rights precedents of the 1950s, NAACP v. Alabama. The Supreme Court should stop in its tracks this shameful effort to deploy government regulation in service of cancel culture.

Amazingly lawless

In 2010, then-Attorney General of California Kamala Harris claimed a license to compel non-profit organizations registered with the state to produce their IRS Schedule B list of major donors. No law was passed by the California legislature empowering her to do this, nor did any agency such as the California Department of Taxation lawfully promulgate any rule or regulation justifying such compelled disclosure on pain of sanction at the time. The Attorney General just announced by diktat that non-profits would henceforth be compelled to disclose their donors to the state.

This lawless diktat was part of a nationwide movement that mobilized over the last decade or so to ferret out donor lists from non-profit so that the government can keep permanent track of donations by individuals or entities across the country.  States that understood that such disclosures could only be compelled by law were able to readily defeat these initiatives through honest legislative debate that protected the non-profits from such compelled disclosure and protected their constituents’ donor privacy intact. Unfortunately, California—and apparently its federal courts—operate under a different Constitution that the court appears to believe permits this to be done outside the law in violation of its citizens’ freedom of association.

An Ugly History

In the late 1950s, the Attorney General of Alabama demanded that the NAACP of Alabama produce its membership lists and held it in contempt when it refused. The NAACP challenged the state’s unilateral demand at the US Supreme Court, which unanimously held that Alabama’s attempt to secure the membership lists violated the NAACP members’ First Amendment associational rights. In one of its finest hours, the Court acknowledged the “vital relationship between freedom to associate and privacy in one’s associations,” and refused the attorney generals’ obviously pretextual excuses for such a lawless demand.

In analyzing the Alabama state attorney general’s demand for NAACP’s member list, the Court applied a straightforward test that asks whether an organization’s members have previously encountered “public hostility” when their membership was revealed. If an organization shows that one or more of its supporters had encountered “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility,” that alone was enough to establish that disclosing the supporter lists to the state “may induce members to withdraw from the Association and dissuade others from joining it.” As the Court explained:

Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.

If such a showing can be made, then Alabama must show that disclosure has a “substantial bearing” on the State’s asserted interest in obtaining the list of names. Alabama could not make that case then; California cannot make that case now.

For 60 years this Supreme Court decision recognized that Americans must be free to associate, and to do so privately in order not to chill Americans, especially those who hold dissident beliefs, from joining, supporting, and donating to those with whom they share beliefs.

Proposition 8 and Occupy Wall Street

Fast forward six decades. Release of donor lists for Proposition 8 and other controversial initiatives have led to toxic public shaming on the internet, destroyed careers (the former CEO of Mozilla, the former Artistic Director of the California Musical Theater), mobbing of private homes, doxxing, and business boycotts. Emboldened by these early successes, those who wish to practice the politics of personal destruction in California have now partnered with a government official not only willing to require non-profits to disclose their donors on a pretext as flimsy as any offered by the Alabama AG in 1958, but to do so in absence of any legislated authority to make such demands.

Regulation Without Representation

No one in California voted for this. No one in California has had the ability to present counter-considerations such as the fact that this equally puts progressive organizations’ freedom of speech and association at risk. No one will be politically accountable for the damage that will ensue after the inevitable leak of information, access to which the government was never entitled in the first place.

Freedom of Speech and Association

Free speech and association are supposed to be inviolable against what James Madison called the spirit of faction. This means they cannot be extinguished by diktat, nor do those rights have to be justified by some heightened showing of actual or threatened victimization as the Ninth Circuit erroneously required in the decision that Americans for Prosperity seek to have set aside in this case. Donors to organizations that support unpopular causes in this internet-enabled world of instant cancel culture should never be put to the task of proving a risk of violent or non-violent bullying[1] —they obviously face lost employment, destruction of reputation, and sometimes permanent diminution of employability. The state of California’s position that donors must show that their physical safety would be endangered by disclosing their association with a dissident organization not only ratchets a requirement never required by the Court in NAACP v. Alabama but requires a showing that is only possible to make after the damage is done. A more cynical, burden-shifting, and dangerous misreading of NAACP can hardly be imagined.

Canceling Real Culture in Service of Cancel Culture

Our state and federal constitutional structure is designed to preserve the ability of political minorities to survive and thrive thus providing an essential check against prevailing—and too often flawed—majority ideologies. See The Federalist No. 10 (James Madison).[2] Bicameralism and presentment are deliberately designed to make law hard to enact, and thus reduce a majority’s abuse or arbitrary exercise of power.

The California Attorney General’s lawmaking by fiat guts these protections and substitutes the rule of men for the rule of law. California’s history of making such information public, and the ease with which such private information can be shared or hacked, makes today’s government-compelled disclosures by administrative decree an exponentially larger threat to First Amendment freedoms than they were at the time NAACP v. Alabama was decided. The Supreme Court should reverse the Ninth Circuit’s disturbing erosion of our laws and social culture protecting these freedoms, and reinvigorate judicial and constitutional protections for all viewpoints, minority views, and unpopular opinions.

[2] “Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, (by their number and local situation, unable to concert and carry into effect schemes of oppression. * * *  A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.” The Federalist No. 10 (James Madison).

February 26, 2021