Defending Donor Privacy Against Compelled Disclosure: Amicus Brief Filed in AFP v. Becerra
Americans for Prosperity Foundation v. Xavier Bacerra: Brief of Amici Curiae Center the Cato Institute, the Committee for Justice, and Texas Charter Schools Association in Support of Petitioner
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), and its progeny held that courts should apply narrow tailoring to violations of the freedom of association. Has that requirement been overruled such that the right to associate privately does not enjoy the strong protective standard that applies to other First Amendment rights, which this Court has held requires narrow tailoring regardless of the level of scrutiny?
Summary of Argument:
During the Civil Rights era, state governments attempted to force groups like the NAACP to disclose its membership lists. This Court stepped in and subjected such attempts to “the closest scrutiny.” NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460–61 (1958). Violations of the freedom of association must advance a compelling state interest and be narrowly tailored to that interest. The narrow-tailoring requirement prevents the government from needlessly infringing on constitutional rights when less restrictive means of achieving its goal are available. The Court requires “‘a fit that . . . employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective,’” which applies “[e]ven when the Court is not applying strict scrutiny.” McCutcheon v. FEC, 572 U.S. 185, 218 (2014) (quoting Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). This narrow-tailoring minimum reflects decades of First Amendment precedent in cases concerning both associational and non-associational rights.
While the Civil Rights era was unique, the right to private association is still vital. In an era of increasing political polarization, protecting associational privacy becomes even more important. And when groups or individuals espouse unpopular or controversial beliefs, private association is critical. The Court’s precedents are clear: no matter the level of judicial scrutiny, state actions that infringe First Amendment freedoms, such as the compelled disclosure of donor lists, must be narrowly tailored to the governmental interest asserted. Petitioners Americans for Prosperity (AFP) and Thomas More Law Center have provided an opportunity for the Court to reaffirm those precedents and continue its protection of First Amendment freedoms.