In Americans For Prosperity Foundation v. Bonta, Supreme Court Conservatives Again Defend The First Amendment As Its Left Approves Of Chilling Speech And Association

08-18-17 Free Speech

How did we get to the point where “liberals” want to chip away at the freedoms of speech and association while conservatives defend it? It’s weird: I’m old enough to remember when those mean old conservatives were always trying to silence dissent, not to mention vulgarity and violent TV shows and movies.

But in the final day of the Supreme Court’s term, the 6-3 conservative majority ruled that California—from which all terrible ideas now seem to flow— may not require charities soliciting contributions in the state to report the identities of their major donors. The law was opposed by very unconservative voices like those of ACLU to the NAACP Legal Defense and Educational Fund, and one would think that the alleged liberals on the court would immediately recognize how the law could and would chill free speech. Or don’t they pay attention to the incidents where CEOs have been run out of their jobs for contributing money to anti-gay marriage organizations, to name just one example? It would seem not. This is also weird, for the cancel culture has made simply stating an opinion that contradicts the Woke Borg perilous to one’s career, personal relationships and safety. Is it overly conspiracy-minded to suggest that progressives want it that way, particularly with their success at making wiggly-spined Americans who would make Patrick Henry retch grovel for forgiveness.

Chief Justice Roberts neatly summarized the importance of free association, writing,

“The First Amendment prohibits government from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This Court has “long understood as implicit in the right to engage inactivities protected by the First Amendment a corresponding right to associate with others.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). Protected association furthers “a wide variety of political, social, economic, educational, religious, and cultural ends,” and “is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.” Ibid. Government infringement of this freedom “can take a number of forms.” Ibid. We have held, for example, that the freedom of association may be violated where a group is required to take in members it does not want, see id., at 623, where individuals are punished fortheir political affiliation, see Elrod v. Burns, 427 U. S. 347, 355 (1976) (plurality opinion), or where members of an organization are denied benefits based on the organization’s message, see Healy v. James, 408 U. S. 169, 181–182 (1972).

“We have also noted that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462 (1958). NAACP v. Alabama involved this chilling effect in its starkest form.”

That last, of course, is what’s at stake here, and I would say obviously so. California, a veritable nest of nascent leftist totalitarians, would love to starve non-profits with politically incorrect missions by making their largest donors targets of protests and boycotts. “Eh, so what?” is the reaction of the Court’s progressive wing, as Justice Sotomajor, speaking for the three dissenters, writes that there is “scant evidence” that those donors to unpopular causes in California would face any harm if forced to surrender anonymity. A more disingenuous argument would be difficult to imagine.

Roberts’ analysis concluded, “When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough.”

Exactly. And now we must depend on a conservative majority on the Supreme Court to block the Left’s attempts at enforced ideological conformity.

Read the opinions here.

13 thoughts on “In Americans For Prosperity Foundation v. Bonta, Supreme Court Conservatives Again Defend The First Amendment As Its Left Approves Of Chilling Speech And Association

  1. “How did we get to the point where “liberals” want to chip away at the freedoms of speech and association while conservatives defend it?”

    Part of it is “liberating tolerance,” where you selectively decide who to tolerate and who not to based on content, and part of it is the recent idea that the offended person is God. Witness the weenie-dom in Canada as they dial down Canada Day celebrations in national shame and statues of Queen Victoria and QE2 are trashed.

    • It is interesting. I don’t know if I’ve ever said it here before, but every now and again I see something that reinforces a thought that I’ve had for a while.

      Up until the Millennials (of which I am one), progressives were in the business of agitating for more rights, or at least net more rights, even if gay marriage disenfranchises the church or if legal abortion disenfranchises the unborn, you can at least see what the argument was for whichever side of the competing rights of Americans they chose to line up behind.

      Progressive millennials were the first generation to actively agitate against the expansion of rights. “Hate Speech is not free speech”, “you shouldn’t have the right to ____”, “VACCINATE or ELSE”, “Due process is only for innocent people!” Yes, yes, I know… Some of that is fringe, and yes, yes, I know… they were always a little dubious on gun rights, but it really does seem like in my lifetime the needle has shifted, drastically, from “generally pro-rights” to a buried-needle against them.

      • I remember the Nixon administration (barely) and I say you are wrong. I can’t remember when the left was for an expansion of rights. What you think of as an expansion of rights were really just redefining rights from a concept of all people are equal and have equal rights to one of different rights for different groups (like Jim Crow or Apartheid). In the 1980’s, the left was pushing censorship based on racism (Huckleberry Finn and Tom Sawyer were banned from schools). In the 1990’s, segregation made a comeback with the excuse of ‘racial justice’. Gay rights and hate crime laws were passed because some people are worth more than others. Parental advisories were pushed at this time, spearheaded by Tipper Gore (Al’s wife). In the early 1990’s, my college had race and sex-based speech codes, segregated spaces, and segregated classes (men were not allowed to speak in Women’s Studies classes). My college had a Black Student Lounge, Gay Student lounge with hot tub (not making that up), Hispanic Student Lounge, etc that were segregated by group and ideology. The head of the conservative student newspaper was excluded from the Black Student Lounge because, as Joe Biden would say, ‘You ain’t black’ if you are a Republican. My state university stated that Christianity wasn’t a valid religion, like Judaism and Islam and Christian groups were excluded. They were trying to get students’ race put on the student ID to allow or deny access to services and events on campus.

        These censorship and special rights concepts are the forerunners of the attacks on civil rights were have today. The ‘Parental Advisory’ set the stage for today’s ‘Fact Checks’. The banning of Tom Sawyer set the stage for today’s censorship of conservative ideas. Gay rights and hate crime laws set the stage for today, where the law treats people differently based on your race and ideology. Colleges are now outright segregating based on leftist ideas.

        Maybe a more glaring example is support for the 2nd Amendment, the protector of the 1st. When has the left been in favor of the 2nd Amendment? Anyone? Can anyone remember? The left has been universally against the individual ownership of firearms, so how can they be for individual rights?

        15th Amendment (universal suffrage) 100% Republican, 0% Democrat
        1964 Civil Rights Act 78% of the ‘no’ votes were Democrats.
        Remember, the ACLU pushed for the 1968 Gun Control Act, specifically designed to disarm black Americans.

        I have never experienced censorship or infringements of the 1st or 2nd amendments from the right in my lifetime. It has all been from the left. Maybe the left once stood for civil rights, but it hasn’t in my lifetime and I actually doubt they ever did.

  2. P.S. Can you picture the US cancelling the Fourth of July over national guilt? Put away the red, white and blue, bring out the sackcloth and ashes.

    • Hartford cancelled its fireworks in 2018 due to “budget issues”, with only a week to spare so no private fundraising had time to cover the gap.

      The new mayor lost quite a bit of my goodwill over that.

  3. To Justice Sotomayor: there is zero evidence that the government needs to know who funds what. The government needs to show a compelling state interest. There is only one reason why the government wants to know who is funding whom and that is to stifle it.

    • The whole purpose of disclosing such info is to isolate people then marginalize them.
      Predators try to separate one from the herd because the kill is easier when it does not confront the group head on. Sotomayor knows this or the wise Latina has little knowledge of Alinski tactics which makes her less wise than she thinks.

      • Plus, the left figures they would never be the ones gone after as a result of donor lists being made public. Donors to “good” causes would never be in peril, only donors to “bad” causes would be hunted down by, oh say, the IRS.

    • Strong statement Chris and I agree. I am not plugged in anywhere to be certain, but I am not blind to the observation that power changes people to believe they were destined to be in a higher class.

  4. Jack, thank you, and Happy 4th of July weekend. I always your appreciate your commentary, especially when it touches on my work, even at the very edges. This whole concept is fascinating. I am by profession a campaign finance regulator since 1993 [and a government ethics regulator since then too]. I am also, in my mind, a conservative. This intense SCOTUS case has implications for campaign finance law and policy. I, unlike many in my profession, do not believe there should be limits on campaign contributions — as long as there is full disclosure of the names of the individual donors making them. You want to participate in political contributions, we gotta know who you are … across the ideological/party political board. But you can give what you wish, no limits. In the alternative, I have come to believe — if you truly do want to remain anonymous as to campaign contributors, then you must subject yourself — and likewise, every other organization across the political spectrum that wishes to remain anonymous must subject itself — to monetary limitations on contributions. In any event, a deep, thoughtful opinion like this, with a majority, 2 concurrences, and a joint dissent, gives me hope for the USA.
    Steve Berlin

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