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A Win for Free Speech That Both Conservatives and Liberals Should Celebrate

A recent Supreme Court ruling in a California case affirms that every American should have the right to make political donations without fearing violence or persecution.

The United States Supreme Court building.
The Supreme Court.
The First Amendment is more than just a guarantee of free speech; it’s a pillar of the American way of life. Because of the First Amendment, Americans are free to say whatever they want, protest whatever they want, associate with whomever they want and worship however they want.

But in America today, these First Amendment freedoms are being politicized and weaponized by partisan interests. We can’t let our partisan divisions blind us to the inheritance of liberty we share. Every American, conservative and liberal, should fight for the strictest First Amendment protections.

So when I heard of the U.S. Supreme Court’s recent ruling in Americans for Prosperity Foundation vs. Bonta, I expected that both sides of the aisle would celebrate this obvious victory for free speech. The state of California had imposed an unjust requirement for nonprofits to disclose their private donors. The Supreme Court struck down this requirement, reaffirming the free-speech right of private donors to anonymity.

But not everyone is pleased. U.S. Sen. Sheldon Whitehouse, a Rhode Island Democrat, attacked the decision as empowering special-interest groups and “dark money” donors. And many in the media have followed his lead, casting this important First Amendment ruling as a partisan win for moneyed conservatives.

One of the first things to keep in mind about Americans for Prosperity Foundation vs. Bonta is that it reaffirms a more than 6-decades-old free-speech precedent. In 1958, the Supreme Court unanimously ruled in NAACP vs. Alabama that the state government could not demand donor and membership information from the civil rights organization.

NAACP vs. Alabama is important because it makes explicit the connection between anonymity and freedom of speech. I think it’s this connection that some politicians like Sen. Whitehouse have forgotten.

Freedom of speech is about more than just the legality or illegality of certain words, ideas or books. Free speech isn’t free if people can’t speak without fearing harassment, persecution or violence for what they say. In a robust and lively republic, some forms of speech are bound to be controversial. People might not like your views, and they may want to ridicule or criticize you for them. Sometimes this can be good. Other times, it can chill free speech by making the cost of speaking your mind too high.

That’s where anonymity comes into play. Anonymity provides people with a way to exercise their free speech without great social cost. If your speech is controversial, anonymity can ensure you aren’t penalized for speaking. And since how you spend your money is a form of speech, legal protections for anonymous money donations are an essential part of defending free speech.

Because free speech is a fundamental right of every American, it really doesn’t matter who is exercising their free speech and in what way; either all constitutionally protected speech is defended or no speech is truly free. You could be a conservative billionaire like Charles Koch, a middle-class liberal, or just a small-town pastor at a local church. In every case, you have a right to speak freely and a right to make political donations without fearing violence or persecution for who you’re donating to.
That’s what makes the partisan political weaponization of Americans for Prosperity Foundation vs. Bonta so alarming. Free speech isn’t just for one side of the aisle; it’s for everyone. And that’s reflected in the court case itself. While conservative organizations were at the forefront of this case, more than 40 organizations spanning the political spectrum, including the American Civil Liberties Union and the Human Rights Campaign, filed friend-of-the-court briefs in support of the plaintiffs’ case.

And it bears saying that it isn’t necessarily government that we should fear persecuting us for our speech; ordinary citizens, politically riled-up mobs or aggressively partisan organizations can do enough to chill free speech on their own. Imagine the backlash if donor information collected by the state of California got leaked or hacked, and suddenly personal information about every significant donor to a controversial pro-life group was published online.

Free speech is a fundamental right guaranteed to every American, and the Supreme Court’s decision in Americans for Prosperity Foundation vs. Bonta reaffirms some vital protections. Liberals and conservatives should stop trying to score points against their political opponents and instead welcome this nonpartisan victory for free speech.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
Executive director of the Faith and Freedom Coalition
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