“A right to speak anonymously?”

Attorneys general in California and New York are demanding that 501 (c)(3) nonprofit organizations disclose their donor lists to the state. At the recent Federalist Society National Lawyers’ Convention, that issue and others were discussed by a panel consisting of Andrew Grossman (BakerHostetler), Stephen Klein (Pillar of Law Institute), Paul S. Ryan (Campaign Legal Center), Hans von Spakovsky (Heritage Foundation), with Michigan Supreme Court Chief Justice Robert P. Young, Jr. as the moderator. From the summary:

Supporters of mandated disclosure of the source of speech (or of money used to pay for speech) claim it can provide important information to the public and the legal system. But opponents say it violates privacy rights and can also deter the sources from speaking or contributing.

This debate also applies to reporters’ confidential sources. In both situations, disclosure (of who contributed or spent, or who a confidential source was) may provide useful information to voters, prosecutors, civil litigants, judges, or jurors. In both situations, requiring disclosure of the source may deter people from contributing to controversial campaigns or organizations, or from talking to journalists. Politically, people tend to react differently to these reactions – confidentiality of contributors tends to be more supported by conservatives, while confidentiality of journalists’ sources tends to be more supported by liberals. But structurally, are these issues similar? This panel will consider both these questions together.

A playlist of all the videos from the Federalist Society convention is here.


  • Wasn’t this issue settled 50 years ago, when the USSC ruled that Mississippi couldn’t demand the NAACP supply the state a list of their members and supporters? Or does this only go one way?

  • In the case of the NAACP, the court found that “Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.” In the current case, the 9th Circuit found that “Here, CCP has not shown any “actual burden” on its freedom of association.”

    But even today, we live in a world where the CEO of Mozilla was forced to step down because he supported a referendum – and that was in California, one of the states seeking these lists. 2015 California is not exactly 1958 Alabama, but I think this is enough to prove that retaliation for supporting an activist organization is not unlikely, and that organizations should therefore not be forced to provide membership or donor lists without a good reason.

    It only does limited good to protect a donor list *after* a particular organization experiences actual retaliation, and it seems bizarre to say that some organizations have to provide a yearly list but some don’t because they’ve received threats.