Giving away privacy

If Darcy Olsen’s political adversaries could find her home by following her—and leave an intimidating message on her front porch—how many more ideological opponents could they target with access to her nonprofit organization’s entire donor list?

In 2015, Olsen served as president of the Goldwater Institute, a limited-government, public policy, and litigation nonprofit group in Phoenix, Ariz. The institute filed a lawsuit challenging a Glendale, Ariz., multimillion-dollar “backroom deal” to bring a National Hockey League team to the city, Olsen said. Her work drew poisonous criticism, including death threats. One anonymous writer implied Olsen was being followed.

That became evident one morning as Olsen stepped out her front door and into a pool of blood. At her feet lay the disemboweled carcass of a rabbit. She believed whoever left it intended to send a message.

Finding and harassing ideological opponents can be just a click away as government entities consider laws requiring nonprofit advocacy organizations to hand over lists naming their major donors.

“Do you think the people making death threats would have stopped with me?” Olsen said in a video produced by People United for Privacy. “The only reason to have someone’s personal address and personal information is to intimidate them. And that will silence speech.”

Olsen joins a bipartisan group of nonprofit organizations drawing attention to donor disclosure laws cropping up across the nation.

For 60 years, politicians on both sides of the aisle have ignored the unanimous 1958 U.S. Supreme Court decision, NAACP v. Alabama, that declared unconstitutional government-compelled disclosure of nonprofit organization membership rolls. Subsequent courts have ruled the precedent includes donor lists. Those lists, in the hands of the government or activists, can be and have been used to harass and intimidate citizens, chilling speech and the freedom of association in the process.

Dismissing that reality, a panel of judges from the 9th U.S. Circuit Court of Appeals on Sept. 11 reversed a lower court decision in Americans for Prosperity Foundation v. Becerra, upholding California’s 2010 law requiring nonprofit advocacy groups to submit their donor lists to the state. The circuit court acknowledged the possibility that members of Americans for Prosperity, a conservative political advocacy group lead by the billionaire Koch family, could “face threats, harassment or reprisals if their information were to become public,” but concluded, “such harassment, however, is not a foregone conclusion.”

Federal law requires nonprofit organizations file an IRS form that includes the names and addresses of donors who give more than $5,000 per year, though that amount varies according to the kind of nonprofit group. New York and California require those lists be submitted to the state. Both laws are being challenged.

Americans for Prosperity has filed for an en banc appeal to the 9th Circuit.

“[The government’s] justification for it has turned the First Amendment upside down,” attorney Jim Bopp told me. “Their justification for [obtaining] the information is they want to know and hold accountable people that support political activity.”

Bopp, who led the successful legal challenge of the McCain-Feingold campaign finance law, called such laws a bargain with the devil.

“There is bipartisan disdain for the First Amendment,” he said. “They want to stifle the NAACP and National Right to Life and the Sierra Club. They want to stifle them because they criticize public officials.”

And despite assurances that the lists will be secure in government hands, evidence to the contrary abounds in California, said Jeremy Talcott, an attorney with the Pacific Legal Foundation. His group filed an amicus brief supporting Americans for Prosperity, which has presented evidence that California “had mishandled these documents for years … accidentally releasing the documents to the public” Talcott told me.

Another California provision intentionally publicizes the names of donors who give any amount to state ballot measures like the 2008 Proposition 8 initiative, which defined marriage in California as between one man and one woman. The Heritage Foundation recorded hundreds of retaliatory actions targeting those who supported the measure.

At least six states are considering similar donor disclosure requirements, according to Starlee Coleman, an adviser for the State Policy Network. And the Goldwater Institute is battling local ordinances in Colorado, New Mexico, and Arizona.

Government officials argue nonprofit organizations need to be more transparent, but Bopp said transparency is for citizens to hold the government accountable, not the other way around.

The Goldwater Institute won its fight against the taxpayer funding of a professional hockey team, and the experience gave Olsen a greater appreciation for donor anonymity. “Nobody has a right to know where I spend my money or what I believe unless I chose to share it,” she said. “That’s what freedom is.”

Free to preach

Two street preachers won a case against the city of Nashville, Tenn., after they were prevented from preaching outside a gay pride festival in June 2015, reported The Tennessean. A 6th U.S. Circuit Court of Appeals decision on Sept. 19 said Nashville violated John McGlone and Jeremy Peters’ First Amendment rights, overturning the previous ruling by a U.S. district court.

McGlone and Peters were preaching against homosexuality using bullhorns on the sidewalk outside the festival at a park when an off-duty police officer ordered them to leave. The two men moved twice and were across the street before they were allowed to continue.

The city argued it restricted McGlone and Peters’ activity not based on content but because the intolerant message “interfered” with the festival. The 6th Circuit didn’t buy it.

“Nashville’s explanation leaves no doubt that but for the anti-homosexuality message that McGlone and Peters were advancing as they stood on the sidewalk, they would not have been excluded,” the ruling concluded. “How, then, can Nashville argue that its restriction of the preachers’ speech was not content based?” It added that because the men were not trying to participate in or speak on behalf of the festival, the city had no authority to ask them to leave. —Rachel Lynn Aldrich

Texas attorney general: Students must stand for pledge

Texas Attorney General Ken Paxton this week said he supported the Cypress-Fairbanks Independent School District in a lawsuit over whether students should stand for the Pledge of Allegiance.

Paxton filed a notice of intervention on Sept. 25 in a lawsuit brought by India Landry, a senior at Windfern High School who was expelled after refusing to stand for the pledge after seeing football players kneel for the national anthem, according to the Houston Chronicle. Landry sued the school for violating her constitutional rights.

“School children cannot unilaterally refuse to participate in the pledge,” Paxton said in the release. “The U.S. Supreme Court has repeatedly held that parents have a fundamental interest in guiding the education and upbringing of their children, which is a critical aspect of liberty guaranteed by the Constitution.”

But Landry’s mother supports the lawsuit, which claims Landry was targeted because she was African-American. U.S. District Judge Keith P. Ellison allowed the case to go forward in July, finding that there was a legitimate claim that the school had violated Landry’s equal protection rights, according to the report. —R.L.A.

Court’s in session

The U.S. Supreme Court opened its fall session Monday and, as expected, there are no new key First Amendment cases on the docket. In conference last week, the justices discussed the case involving the Bladensburg Peace Cross, a World War I memorial targeted for removal by an atheist group. But the case did not appear on the Monday’s orders list. Court watchers do not expect the court to take up any high-profile cases until a ninth justice is seated. —B.P.