On Monday (Feb. 27) the Supreme Court refused to hear National Organization for Marriage v. McKee. In that case, the National Organization for Marriage (“NOM”) had unsuccessfully challenged a Maine law that required it to register with state and disclose detailed information about its members and its finances before it could speak out about politics in the Pine Tree State. In ruling against NOM, both federal district judge Brock Hornsby and then the U.S. Court of Appeals for the First Circuit had concluded that the Supreme Court’s recent decision in Citizens United v. FEC had implicitly overturned two prior Supreme Court decisions, Talley v. California and McIntyre v. Ohio Elections Commission, which had upheld a right to engage in political speech without having to register and disclose oneself to state authorities. (Note that this issue was not raised in the cert petition in McKee).
In the current hysteria over secret (and not so secret) political spending, protection of privacy is one of many hard won rights that are now threatened. Whether or not Talley and McIntyre have been overturned, they, and numerous other decisions protecting the right to engage in political activity without fear of either government harassment or government-fostered private harassment, are now in danger.
In Talley, Manuel D. Talley, a founder of the Los Angeles chapter of the Council for Racial Equality, attempted to distribute handbills that urged consumers to boycott businesses that carried products of “manufacturers who will not offer equal employment opportunities to Negroes, Mexicans and Orientals.” He was arrested and fined for violating a city ordinance that required any handbill distributed in the city to include “the name and address of the person who printed, wrote, compiled or manufactured the same … .” Talley’s identity was no secret. The handbills stated that they were published by “National Consumers Mobilization,” a group Talley had founded in 1956. But they didn’t explicitly state “who was behind” National Consumers Mobilization, or include the group’s address. The reason police were called is pretty clear – it’s not because people wanted to know “who was paying” for this political activity. It is because they wanted to stop the political activity.
In McIntyre, Margaret McIntyre was distributing handbills against a local school levy. The flyers stated only that they were produced by “Concerned Parents and Taxpayers.” But there was no secret about McIntyre’s identity. Some months after the election in which the tax passed, school officials filed a complaint with the Ohio Elections Commission because McIntyre’s handbills did not identify who had paid for them. The retaliatory aspect of the case was clear.
While McIntyre and Talley upheld the right to speak out on political issues anonymously, in each case the actual identity of the speaker was well known – at least to the authorities and the private businesses that sought to silence them in the future. In that sense, these cases are less about forced disclosure limiting speech, and more about the burden of regulation and the ability of complex regulatory regimes to trip up grassroots speakers, or about the right to present one’s message to the public as one sees fit, rather than according to a pre-approved government format. But each also reflects why anonymity might be valuable. In racially charged Los Angeles in 1958, widespread publication of Talley’s name and address could be threatening to his health and his property. In Westerville, Ohio, in 1988, Mrs. McIntyre had children in the Westerville Public Schools. Her opposition to the school tax, undoubtedly unpopular with teachers and administrators, could have repercussions for her children in obtaining references, gaining positions on sports and other competitive club activities, and even grades.
If McIntyre and Talley have been sub rosa overruled (and there is no doubt that they are at least under sustained assault), other cases protecting Americans from having to reveal their political views and activity to the government are next in line. The most notable is NAACP v. Alabama and Bates v. Little Rock.
In the 1950s, the NAACP was still widely considered a “radical” group – certainly so in most of the deep south. Law Professor Anita Allen of the University of Pennsylvania sets the background:
Public resistance to integration efforts in the 1950’s explains why the state of Alabama became desperate to get rid of the NAACP. … The NAACP’s mission to remove racial and color discrimination from American life was at variance with the state’s aim of maintaining an unequal caste system of racial segregation.
Alabama conceived a clever strategy to expel the NAACP, one that relied on the state’s foreign corporation qualification law. Alabama had a statute similar to other states’ requiring out-of-state (“foreign”) corporations to register or “qualify” prior to transacting business. To qualify, a corporation was supposed to file its charter with the secretary of state, designate a place of business, and name an agent to receive service of process. The penalty for transacting business without having first qualified included fines for the organization and criminal prosecution of its corporate officers. Alabama decided that the NAACP, which had been organized in New York, was a foreign corporation operating in Alabama.
In 1956, Alabama officials accused the NAACP of violating the law requiring foreign corporations to register with the state. … [I]it was true that the NAACP had failed to comply with the state’s corporate qualification law prior to setting up shop in Alabama in 1914. Based on this act of non-compliance, state officials successfully obtained a court order enjoining the NAACP from continuing to operate in the state. …
NAACP launched a series of legal maneuvers to fight ouster from Alabama. The group tendered the missing corporate qualification documents, but the state refused to accept them. The state fought back with a motion seeking the names and addresses of the organization’s agents and members. The sweeping motion was granted. The organization produced the identities only of its officers and directors. At a time when civil rights advocates faced death, injury and loss of property, the NAACP refused to reveal the identities of its general membership. For this refusal, the NAACP was held to be in contempt of court. The court fined the organization $100,000—an enormous sum of money.
The Supreme Court overruled the lower court and held that the NAACP had a right to keep the names of its members and donors anonymous. “It is hardly a novel perception,” wrote Justice Harlan for a unanimous Court, “that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved.” The Court went on to note that “[i]t is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner’s members may have upon participation by Alabama citizens in petitioner’s activities follows not from state action, but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.”
Approximately 18 months later, in Bates v. Little Rock, the Court unanimously struck down a Little Rock, Arkansas city ordinance requiring any organization operating in the city to provide, “a statement as to dues, assessments, and contributions paid, by whom and when paid, … .” The ordinance also provided that the list would be made public and made available for inspection during all business hours.
Every informed person today (and probably then, too) understands what was going on in the Alabama enforcement action against the NAACP and the Little Rock ordinance in Bates. Each was an effort to compel disclosure so that private actors would then predictably threaten, harm, vandalize, and boycott the individuals involved in funding these unpopular (at least in some quarters) political ideas. Talley, we might note, specifically relied on NAACP v. Alabama and Bates to reach its decision.
NAACP, Bates, Talley, McIntyre and other decisions protecting the right to engage in political activity without being forced to register with the state or disclose to the state and hostile private individuals represent hard won victories for freedom and civil rights. It is true that few political actors today probably face the same threat levels as civil rights activists in the 1950s. But vandalism, threats, and boycotts in recent years have been well documented (I’ve previously compiled just a few of the many incidents here). The Supreme Court allowed some limited disclosure of political activity in Buckley v. Valeo, on the grounds that such information could help the public make informed choices at the ballot box. But in its recent decisions in McConnell v. FEC, Doe v. Reed and Citizens United the Court has seemed untroubled by disclosure rules that go far beyond anything it had previously allowed to stand.
Meanwhile, those promoting excessive disclosure in response to Citizens United seem far less interested in informing the public than in stifling opposing views. Note that all political ads advocating the election or defeat of a candidate are required to carry a message saying who paid for them, and whether or not they were authorized by the candidate. Although they shriek about “secret” spending, the spending is not really secret. Rather, there simply is not as much information disclosed about private individuals as some so-called “reformers” (a unique label for those seeking to turn back the clock on civil liberties) would like. They do not seek this additional information on donors to evaluate the credibility of the messenger and hence the message. Rather, like the entities attempting to force disclosure of financial support in NAACP, Bates, Talley, and McIntyre, they have already decided that they hate the message. Their goal is not to evaluate the message, but to “hold the speaker accountable,” by which they mean “subject the speaker to private harassment, boycotts, threats, and vituperation.”
It could be that the Court is on the verge of accepting these arguments that it rejected during the civil rights era, and continued to reject through the 1995 decision in McIntyre. Certainly it is under pressure to do so. Such rights, once lost, will be hard to regain. And the next speaker to assert those rights may not be the evil Karl Rove and his “secretive” American Crossroads, or the big businesses of the U.S. Chamber of Commerce, or even the bullying labor unions who right to anonymous speech was protected in another jeopardized decision, Thomas v. Collins, – it may be you.