New York Attorney General Eric Schneiderman demands out-of-state charities disclose all donors for his inspection. He does not demand this of all charities, only those he decides warrant his special scrutiny. Schneiderman garnered national attention for his campaign to use the powers of his office to harass companies and organizations who do not endorse his preferred policies regarding climate change. Now, it seems he seeks to do the same to right-of-center organizations that might displease him. Our colleague Walter Olson has cataloged Schneiderman’s many misbehaviors.
He’s currently set his sights on Citizens United, a Virginia non-profit that produces conservative documentaries. While Citizens United has solicited donations in New York for decades without any problem, Schneiderman now demands that they name names, telling him who has chosen to support the group. Citizens United challenged this demand in court, arguing that to disclose this information would risk subjecting their supporters to harassment and intimidation.
These fears are not mere hyperbole. If the name Citizens United rings a bell, it’s because the organization, and the Supreme Court case of the same name, has become the Emmanuel Goldstein of the American left, complete with Democratic senators leading a ritualistic two minutes hate on the Senate floor. In 2010, the Supreme Court upheld its right to distribute Hillary: The Movie, and ever since “Citizens United” has been a synecdoche for what Democrats consider to be the corporate control of America. Is it unwarranted to think that their donors might be subjected to the sort of targeted harassment suffered by lawful gun owners, or that Schneiderman might “accidentally” release the full donor list to the public, as Obama’s IRS did with the confidential filings of gay marriage opponents?
The Supreme Court has long recognized the dangers inherent in applying the power of the state against the right of private association. The cornerstone here is 1958’s NAACP v Alabama. For reasons that hardly need be pointed out, the NAACP did not trust the state of Alabama, in the 1950s, to be good stewards of its membership lists. “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs,” wrote Justice John Marshall Harlan II, who went as far as to compare such demands to a “requirement that adherents of particular religious faiths or political parties wear identifying arm-bands.” More recently, Justice Alito pointed out in a similar context that while there are undoubted purposes served by reasonable, limited disclosure requirements, the First Amendment requires that “speakers must be able to obtain an as-applied exemption without clearing a high evidentiary hurdle” regarding the potential harms of disclosure.
But the Second Circuit Court of Appeals has decided it knows better than the Supremes. On Thursday, it ruled that Citizen United’s challenge should be thrown out without even an opportunity to prove their case. In the process, it effectively turned NAACP into a “Jim Crow” exception to a general rule of unlimited government prerogative to panoptic intrusion into citizen’s political associations. While there can be no doubt that the struggle for civil rights presented a unique danger for its supporters, this should not mean that only such perils warrant First Amendment protection.