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The Supreme Court’s conservatives are quaking over cancel culture

The Court’s right flank is afraid that the monster under their bed will cancel them.

Justice Samuel Alito participates in the opening panel of Georgetown Law Journal’s annual symposium, in Washington, DC, on November 2, 2017.
AP Photo/Cliff Owen
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Here’s a quote from someone who, not that long ago, was widely considered to be on the cutting edge of conservative thinking about the law:

“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Those are the words of the late Justice Antonin Scalia, in a 2010 opinion concerning whether the public should be allowed to learn who signed a petition seeking to call a referendum on a state law.

They form a stark contrast with the attitude of conservative justices on Monday, only a little more than a decade after Doe, when the Court heard another case asking whether disclosure laws can be applied to political actors.

The conservative justices who heard this new case, Americans for Prosperity Foundation v. Bonta, showed little of the confidence and “civic courage” that Scalia once celebrated. Many of them bristled with paranoia that angry mobs lurk in every alleyway, waiting to cancel conservative speakers.

At two separate points in the oral arguments, Justice Neil Gorsuch warned of a world where the government could demand to see your Christmas card list or a list of all the people you’ve dated in the past. Justice Clarence Thomas repeatedly suggested that the Court must provide constitutional protection to any advocacy organization that is accused of being “racist” or “homophobic.” Justice Samuel Alito warned of “vandalism, death threats, physical violence, economic reprisals, [and] harassment in the workplace” directed against donors to an anti-LGBTQ campaign.

Americans for Prosperity is a fraught case, presenting sensitive issues concerning when donors to advocacy organizations should be allowed to keep their identities secret in order to protect them from reprisals. As the Court first recognized in the Jim Crow era, when Alabama tried to uncover the NAACP’s membership list, there are rare cases where donors or other individuals associated with advocacy groups must be protected from state disclosure rules.

But the Court’s conservative majority appears to believe that reprisals against political conservatives are now so common that it may require handing down a sweeping and potentially unprecedented remedy to protect their fellow conservative activists from the horrors of cancel culture.

So what is this case actually about?

The specific regulation at issue in Americans for Prosperity is fairly small potatoes. California requires all nonprofit organizations that raise tax-deductible funds within the state to disclose their largest donors to the state attorney general’s office. That office, which claims that it needs this information to investigate fraud in the nonprofit sector, is required to keep all of this information confidential from the public. But the attorney general’s office hasn’t always followed ideal security procedures, and some of this confidential information has leaked to the public in the past.

The plaintiffs in this case are two conservative advocacy organizations, the Americans for Prosperity Foundation and the Thomas More Law Center, who claim that this donor disclosure requirement is unconstitutional. (In an email sent after I previously wrote about this case, a spokesperson for the Americans for Prosperity Foundation suggested that I note that the Americans for Prosperity Foundation is a legally distinct entity from a related group called “Americans for Prosperity.”)

The Court’s precedents are fairly clear about how this case should proceed. Most people know of the Court’s decision in Citizens United v. FEC (2010) because of its holding that corporations could spend unlimited money to influence elections. But Citizens United also took a fairly permissive approach to laws requiring the disclosure of political donors.

Courts distinguish between what are known as “facial” challenges to a law, and more mild “as-applied” challenges. If a law is declared unconstitutional on its face, that means it must cease to operate entirely. But if a particular plaintiff prevails in an as-applied challenge, the government may still be able to enforce the challenged law against other parties.

Citizens United applied the Court’s preexisting position that, when someone challenges a disclosure law, an as-applied challenge is the preferred vehicle. As the Court explained, an organization that “could show a reasonable probability that disclosure of its contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties” may bring an as-applied case against a disclosure law.

Based on this framework, the Americans for Prosperity plaintiffs have a strong case. At one point during the oral argument, Justice Sonia Sotomayor — arguably the Court’s most liberal member — told California’s lawyer that “a reasonable person may not have much faith in the AG’s office after previous breaches” of its confidential information. And liberal Justice Elena Kagan also pointed to the trial court’s findings that there is a ”pervasive reoccurring” problem of public disclosure in the state AG’s office, and that donors to the plaintiffs ”would likely be subject to threats and harassment” if their names were disclosed.

So this could have been an easy case. Apply the same approach the Court applied in Citizens United, accept Sotomayor and Kagan’s understanding of the case’s facts, and grant relief to the two plaintiffs on an as-applied basis. The opinion could potentially even be unanimous.

How the conservatives saw the case

But the plaintiffs insist that they are entitled to facial relief — meaning that the state’s disclosure rule must be tossed out for all nonprofits, regardless of whether donors to those nonprofits face harassment, or even if they want to keep their donations secret.

Some of the Court’s Republican appointees seemed to think it would be extraordinarily burdensome to require challenges to California’s disclosure law to be handled on an “as-applied” basis.

“How do you think an as-applied challenge would work?” Chief Justice John Roberts asked acting Solicitor General Elizabeth Prelogar, who was in Court to defend using the “as-applied” rules in this case. Should a charity “attach an affidavit or something saying we’re a very controversial charity and we think, if people knew who gave money to us ... their rights to association would be chilled?”

Similarly, Justice Alito warned of a world where every single nonprofit that fears for its donors would have to “take California to court and fight the state tooth and nail for more than six years in order to avoid potential public disclosure of its list of donors.”

Realistically, these fears are exaggerated. Federal law permits courts to require a state that violates an organization’s constitutional rights to pay that organization’s legal fees. So, if California is too reluctant to grant exemptions to organizations that seek them, it will be hauled repeatedly into a judiciary dominated by conservatives — and will quickly learn that it has made a very expensive mistake.

Thomas, for his part, already wrote an opinion in Citizens United — he was joined by no other justice — indicating that he would strike down disclosure laws on their face even in the campaign finance context. And Justice Neil Gorsuch appeared to join Thomas’s camp on Monday.

“If the First Amendment protects the right to associate in private, why do we need to consider harassment?” Gorsuch asked at one point, suggesting that all donors who seek to influence politics through their wealth are entitled to remain private.

And then there was Alito, who joined the majority opinion in Citizens United and rejected the more radical approach laid out by Thomas in that case. He suggested that “in our current atmosphere,” political donors “to organizations that take unpopular positions on hot-button issues have reason to fear reprisals.”

The phrase “in our current atmosphere” is telling, because it raises the question of why he thinks the atmosphere was different in previous eras.

The seminal case establishing why advocacy groups should sometimes be allowed to receive exemptions from political disclosure laws is NAACP v. Alabama ex rel. Patterson (1958). It involved an effort by the Jim Crow state of Alabama to force the NAACP to disclose its members to the state — most likely so those names could either be turned over to the Ku Klux Klan or placed on an employment blacklist.

Though the Court ruled in favor of the NAACP in this case, it only granted as-applied relief to the organization. It did not strike down the underlying state statute, which required most corporations doing business in Alabama to make certain disclosures.

Does Alito think that the atmosphere in the Jim Crow South was more unfriendly to “organizations that take unpopular positions” than the atmosphere we live in today? If as-applied relief was sufficient to protect civil rights activists, why does the Americans for Prosperity Foundation require more?

The most likely explanation for the conservative movement’s shifting position from the views Scalia expressed in Doe to the views expressed by most of the Court in Monday’s oral arguments is a problem of empathy.

People who express unpopular views — or those who enable organizations that do so — have faced harassment or worse for as long as there has been democratic politics. Just ask Socrates. And, to be clear, donors to the Americans for Prosperity Foundation should no more face harassment than donors to the NAACP. As Sotomayor and Kagan noted, the foundation has a strong argument on the facts.

But it is true that the values espoused by people like Roberts, Thomas, Alito, and Gorsuch are increasingly out of favor with the American public — the Republican Party has lost the popular vote in seven of the last eight presidential elections and the thing that distinguishes “our current atmosphere” from, say, the atmosphere when Alito joined the Citizens United opinion in 2010 is that Alito and people like him now correctly perceive that their views are on the outs. They are suddenly hyperaware of every incident where a business is boycotted because its owner opposes LGBTQ rights, or where a corporate executive is fired for expressing similar views.

But they’ve yet to explain why these incidents require a more protective rule than the one announced in NAACP. Or why the harassment faced by conservatives today is somehow worse than the threat that civil rights activists would have faced if their identities had been revealed to the Klan.

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