Saturday, March 17, 2018

Membership Disclosure and the First Amendment

It is our First Amendment right to associate with whomever we choose. But like every right, freedom of association is not unlimited and can be regulated (although there is a lot of hypocrisy in the Court’s decisions). One such regulation is the mandatory disclosure of group, club, or organization memberships. The first big membership disclosure case was NAACP v. Alabama in 1958. In that case, the Court held that mandatory disclosure of NAACP members violated the First Amendment. In this case, the Court understood that making the names of NAACP members public, they would face harassment, racism, and even potentially criminal acts. Of course, members of clubs, organizations, and groups may forfeit their First Amendment rights when they perform activities in public, but that should be up to the individual if they want to forfeit that right. On the flip side, the Court would conversely have to protect members of communist or socialist organizations as well as Ku Klux Klan members (KKK members can also be threatened and even face violence).

Freedom of association was also put to the test in the high Court to deal with employee unions. In Abood v. Detroit Board of Education (1977) and Knox v. SEIU (2012) the Court held that unions can charge non-union members fees since non-members also benefit from the labor contracts bargained by unions. However, unions cannot charge non-members fees that are used for political purposes. In other cases, the Court has held that groups should be forced to allow memberships to females (Roberts v. Jaycees, 1984) while on the other hand, the Court held that the Boy Scouts failure to admit gay scoutmasters was constitutional (Dale v. Boy Scouts, 2006).

The one area where membership disclosure is not protected by the Court is in cases having to deal with campaign finance. In Buckley v. Valeo (1976) the Court said “disclosure of contributions to candidates and political parties will deter some individuals who otherwise may contribute. In some instances, disclosure may even expose contributors to harassment and retaliation. These are insignificant burdens on individual rights.” However disclosure “appear(s) to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.” The Court majority came to the same conclusion in McConnell v. Federal Election Commission (2003). Justice Thomas in his dissent asserts: “The right to anonymous speech cannot be abridged based on the interests asserted by the defendants.” Campaign finance disclosure was put to the test again in Citizens United v. Federal Election Commission (2010). The Court held that although individuals, companies, and groups could contribute unlimited funds to political parties or campaigns, donations over a certain nominal amount had to be disclosed. In his dissent on the disclosure aspect of the law Justice Thomas points out how “donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation.” Proposition 8 in California was a good example. Prop 8 was the gay marriage initiative that failed in 2008. In California, anyone donating more than 100 dollars not only had their name disclosed, also had other private information disclosed (email, phone number, street address, employer and so forth). In fact, self-employed persons had their businesses boycotted and protested. And the “director of the nonprofit California Musical Theatre, was forced to resign after artists complained to his employer.” Thomas is correct when he points out “the fallacy in the Court’s conclusion that disclaimer and disclosure requirement impose no ceiling on campaign-related activities, and do not prevent anyone from speaking.” Thomas wisely shows that disclosure is not needed for the federal government to enforce “corruption” laws.

So what is the difference between the NAACP and the Citizens United cases? Nothing, but the outcome. The government is responsible for the safety of its citizens and protecting them from “physical harm” (otherwise their fundamental rights are violated). Disclosure in either case invites the potential for “physical harm”. This is why the Koch Brothers have been the big punching bag for liberals: they donate mostly to conservative choices. Physical harm is more than the being the victim of a crime. Physical harm can be the loss of business (from protests or boycotts) where a person’s property rights are threatened. A person should be able to practice non-volatile free speech without the threat of retaliation.

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