Supreme Court Hears Arguments in First Amendment Associational Rights Cases Involving Rising Threats From Cancel Culture


Laura Hernandez


May 6, 2021

4 min read

Free Speech

As everyone knows, “Cancel Culture” is a menacing fixture of American life now, and it jeopardizes the First Amendment right to privacy in one’s political and charitable associations. Recently, the Supreme Court heard oral arguments in Americans for Prosperity Foundation (APF) v. Bonta and Thomas More Law Center (TMLC) v. Bonta. Both cases involve the question of what level of protection under the First Amendment is adequate to protect the right to privacy in associations, especially given the dramatic rise in the harassment and reprisals against citizens who hold disfavored viewpoints.

As we explained here, the cases arose because California is one of a few leftist states that required all charities to submit lists of their major donors. The information should not be publicly disclosed but California had no law in place to ensure the information’s confidentiality. Instead, the state hired students, contractors, and seasonal workers to upload the information on unsecure websites. Unsurprisingly, the information was easily hackable by the public and immediately exposed the organizations’ donors to the threat of harassment and retaliation. Both APF and TMLC had experienced such harassment, including death threats, against their donors and employees in the past. California’s carelessness escalated the threats exponentially.

In our amicus brief at the Supreme Court, we urged the Court to apply the most rigorous form of scrutiny to all compelled disclosure laws in order “to protect against the chill threatening First Amendment associational rights from the pervasive threat of retaliation and harassment.”

Like all of the Supreme Court cases that have been argued over the course of the pandemic, yesterday’s oral arguments were conducted telephonically. Unlike in-person oral arguments, the individual Justices may only ask questions when it is his or her turn. Chief Justice Roberts leads off the questioning and then calls on each Justice in order of seniority. Because each Justice has only a limited time period in which to ask questions, a significant consequence of the telephonic system is that generally all the advocates are pressed equally.

The Court heard from three advocates: counsel for the APF and TMLC, counsel for the state of California, and the Assistant Solicitor General for the United States. The Assistant Solicitor General argued because the Court deemed the case important enough that it requested the views of the United States. Unsurprisingly, however, the views of the United States before the presidential election were different than its views after the election.  Before the election, the Solicitor General filed a brief in support of APF and TMLC, arguing that the Ninth Circuit was wrong. At oral argument, however, President Biden’s Assistant Solicitor General abandoned that position and argued that the Ninth Circuit’s decision was mostly correct but that the case should be sent back to the Ninth Circuit to reassess the evidence about the threat of harassment against APF and TMLC. As the saying goes, “elections have consequences” for the courts and even for individual Supreme Court cases.

Counsel for APF and TMLC began his argument stating that the demand by the California attorney general’s office that charities submit a copy of their federal tax return, including a report of their major donors, casts “a profound nationwide chill” on First Amendment rights  “for no good reason.” The Justices repeatedly questioned him on the legal standard that should be applied to laws compelling charities to disclose their donor lists, but a majority of the Justices seemed to accept that the California donor disclosure rule had violated the rights of APF and TMLC because they had suffered severe threats of retaliation.

For example, Justice Alito noted that the district court had “found ample evidence that the contributors to petitioners would be harassed.” He asked, “What more do you think these petitioners should have to show?” The Assistant Solicitor General, to whom the question was directed, did not answer the question other than to argue that the Ninth Circuit, the very court that ruled against APF and TMLC, should be given another opportunity to weigh the evidence produced at trial.

Justice Kagan echoed Justice Alito about the ample evidence supporting APF’s and TMLC’s claim and asked counsel, “How can you win?” in light of the deference that should be given to the trial court’s factual findings.

Justice Thomas pressed California’s counsel on her downplaying of the risk to charitable organizations from disclosure of their donors. He noted that organizations that may not take inherently controversial views may nevertheless be catapulted into notoriety by someone labeling them as “racist or homophobic or white supremacist.”

Justices Kavanaugh and Barrett commented on the impressive array of amicus briefs filed in support of APF and TMLC. Justice Barrett suggested that the number of organizations that filed weighed against California’s argument that the threat to associational freedoms from its disclosure requirement was not significant.

Although it is never wise to predict the Court’s decision from the Justices’ questions at oral argument, California’s counsel is probably a little nervous.

With your invaluable support, we fought the IRS when it targeted Tea Party groups for discriminatory treatment because of their political views. In filing our amicus brief in this case, we are continuing the fight to protect Americans’ right to freely associate with others without fear that they will be retaliated against for their political associations.

Because this case was argued so late in the Court’s term, it will be one of the last to be decided – likely late June.