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Don’t Understate First Amendment

LOS ANGELES – In the 1950s and 1960s, a particular organization with views that in some quarters were – to put it mildly – unpopular sought to exercise its First Amendment rights and advance its agenda.

But along came the government of a particular state that – for transparency’s sake – required the organization to disclose its membership list.

Harmless, you think?

Think again.

The organization challenged the disclosure requirement and won in the U.S. Supreme Court, which recognized the danger that the membership-list disclosure requirement posed.

Do you know which organization this was?

It was the National Association for the Advancement of Colored People.

That’s right. The NAACP.

Think about the consequences of disclosing the NAACP’s membership list, particularly in the 1950s and 1960s.

Now you understand why the NAACP needed to prevail on principles applying not only to the NAACP but also to other organizations.

Fast forward to April 26, 2021, when the Supreme Court will hear challenges by two other organizations with views that in some quarters are – to put it mildly – unpopular: The Thomas More Law Center and the Americans for Prosperity Foundation.

The center and the foundation challenge California’s requirement that they, as nonprofit organizations in effect disclose names of major donors.

The center and the foundation should prevail for many of the reasons asserted by them and by a group of dissenting judges from the San Francisco-based U.S. Court of Appeals for the Ninth Circuit, where the center and the foundation lost.

Although the center’s, the foundation’s, and the dissenters’ good and courageous work is worthy of admiration and appreciation, their analyses have a significant error in common.

Although this action involves speech-disclosure law, it involves no political-speech-disclosure law.

Nevertheless, in seeking to distinguish political-speech-disclosure law, the center, the foundation, and the dissenters understate how the First Amendment protects political speech and do so in ways that, if they become Supreme Court holdings or even dicta, can undermine First Amendment rights to political speech.

This is not to assert this is anyone’s intent, yet this can be an effect of the center’s, the foundation’s, and the dissenters’ assertions.

The Supreme Court has long held that political speech is at the core of what the First Amendment protects.

Although the center and the foundation are due to prevail, no one should undermine how the First Amendment protects political speech.

As an aside, there are two ironies here that many may not have appreciated.

¯ First, the entity representing the Thomas More Law Center successfully represented Canyon Ferry Road Baptist Church of East Helena, Inc. in a previous Ninth Circuit challenge to Montana political-speech law.

Canyon Ferry prevailed: The Ninth Circuit established that government may not trigger political-committee burdens for organizations engaging in only small-scale speech. This was the first such holding in any court.

However, if, in that previous challenge, the Ninth Circuit had adopted the political-speech-law analysis that the center now erroneously asserts, Canyon Ferry may well have lost.

¯ Second, the Americans for Prosperity Foundation has a sister organization named Americans for Prosperity.

Under the law, the foundation and the sister organization are separate.

Unlike the foundation, the sister organization engages in political speech. But the sister organization may well not engage in sufficient political speech for it to be constitutional for government to trigger political-committee burdens for the sister organization.

However, if a court adopted the political-speech-law analysis that the foundation now erroneously asserts, the sister organization may well have to bear political-committee burdens.

Such burdens can include extensive reporting, which can include disclosing contributors.

To prevail in the action that the Supreme Court will hear April 26, neither the Thomas More Law Center nor the Americans for Prosperity Foundation had to understate how the First Amendment protects political speech or do so in ways that can undermine First Amendment rights to political speech.

In holding for the center and the foundation, the Supreme Court should not follow suit in this respect.

With the unfailing support of his wonderful wife, Hilary Kurtz Elf, Dr. Randy Elf has since 2010 written more briefs and conducted more oral arguments than anyone else in the country on the constitutionality of law regulating political speech. His brief in the current action is at https://works.bepress.com/elf/84

COPYRIGHT ç 2021 BY RANDY ELF.

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