That’s the way I would frame the big-picture perspective on this case. The major precedents on when state demands for disclosure of a group’s donors violate the First Amendment’s protections for freedom of association (outside the campaign-finance context) come from earlier eras. More specifically, many of those cases involve attempts by Southern states in the 1950s and 1960s to force disclosure of donors to the NAACP. At times, those laws were even clearly targeted at the NAACP. Given the risks of reprisals against those donors, in that context, the Court struck these forced-disclosure laws down. The risk of reprisal was quite specific, and the Court rightly understood the risk donors to the NAACP faced. Few other organizations faced similar risks from state-mandated disclosure of donors.
The California law in this case is a general law and is clearly not targeted at any specific group. But in today’s political culture, the Court is realistic enough to realize, as oral argument demonstrated, that the risks of economic or other reprisals against donors to a broader range of groups is greater than in earlier decades. Because cultural issues are so much more central to politics, and so polarizing, groups dealing with issues ranging from religion, to education, to sexual-orientation, and many other areas are at the center of intense political conflict (the animal-rights group, PETA, filed a brief in the case). Not only is the political culture more punitive, but the internet and social media make it far easier to get access to sensitive information and to mobilize tactics, including various forms of reprisal, against donors to groups perceived to be controversial. On top of that, politically motivated leaking of information disclosed to the government, and required to be held confidentially, has become more common. It will be interesting to see if any of the opinions make reference to the recent disclosure to Pro Publica of tax returns filed with the IRS, which are among the most sensitive documents filed with the government.
Indeed, Justice Sotomayor went even further at argument to comment that anything can be hacked these days, suggesting that even without intentional leaks, sensitive private information filed with the government is at risk of being exposed. And to add to the mix, a central aspect of the case is the incompetence of California’s government, which inadvertently exposed vast amounts of the charities’ donor-disclosure information that was supposed to be available only to the government.
There are many significant, intriguing doctrinal issues in the case. One thing I’ll be looking for is how each of these issues is affected by our toxic political culture and these surrounding realities. In many ways, this case is the Court’s first confrontation with applying the First Amendment to disclosure laws in the “modern” context of today’s vicious political realities.