Originalist and Textualist Justices Should Reject Argument that First Amendment Includes Right to Anonymous Association, and Instead Apply Well-Established Exacting Scrutiny in AFP Case

Yesterday I wrote about how I understood the oral argument in AFP v. Bonta. Today I want to highlight some points raised by Justices Gorsuch, Kavanaugh, and Barrett about whether the First Amendment includes a right to anonymously associate. You can see these arguments in the now-released transcript.

Justice Gorsuch raised the question about whether requiring associations to disclosure their donors would be a form of compelled speech. And Justices Kavanaugh and Barrett both brought up AFP’s argument that somehow compelling the disclosure of donor information violates the right to assembly guaranteed in the First Amendment.

These are odd arguments for textualists and originalists, and not at all in line with the views Justice Scalia offered of the First Amendment as a matter of text. The basic textual point is that the right to speak and associate are not directly infringed by disclosure requirements, since one can still freely speak and associate where there is no risk of retaliation or harassment (and there’s an exemption when there is under Brown v. Socialist Workers and Buckley). Nor does a disclosure requirement prevent anyone from assembling anywhere to seek government redress of their grievances.

Contrary to a textual reading of the First Amendment, Justice Gorsuch seemed to argue that anonymity is part of the First Amendment right itself, which is akin to finding a privacy right in the penumbras of the speech and assembly rights.  That’s not an approach I expected to hear him even exploring, given his jurisprudential commitments.

As to compelled speech objection, since the state is not asking the charity to speak, but rather to disclose information already contained in its own records and subject to inspection, nothing is compelled.

There seems to be more than a majority of the Court willing to apply exacting scrutiny to disclosure requirements, and also a majority finding that California’s leaky system went too far in allowing donor information to be disclosed without good reason. That’s good reason to accept AFP’s as-applied challenge, and not use the case to accept a facial challenge to fundamentally rewrite First Amendment doctrine about the constitutionality of campaign finance disclosure generally.


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