Every October, we recognize Free Speech Week in celebration of freedom of expression and the First Amendment. Here at People United for Privacy, Free Speech Week is also an occasion to remember the importance of donor privacy for free speech. This year, both issues are heightened by a heated presidential election.

Why does donor privacy matter for free speech? When Americans want to improve their communities and the world around them, we rarely do it alone. Instead, we find other like-minded citizens to help us build movements for change. By pooling our resources in groups, we can reach far larger audiences and achieve much greater success than when we act alone.

But if the government can expose and punish citizens for supporting the ‘wrong’ group, many will be pressured to stop giving. Those Americans would be deprived of their right to associate with the groups and people they choose. Groups that opposed the establishment would be steadily drained of resources until eventually they are unable to make their voices heard. When that happens, freedom of speech is chilled.

2024’s Free Speech Week brings a special focus to this issue. The presidential election has brought fresh scrutiny of Vice President Kamala Harris’s actions to force nonprofits to turn over their confidential donor lists as California Attorney General. Her demands ultimately led to a pro-privacy ruling at the Supreme Court in 2021’s Americans for Prosperity Foundation v. Bonta. The controversy also triggered a wave of laws limiting the power of state officials to pierce donors’ privacy. 

In fact, 2024 also saw a major milestone for those laws. This year, the Personal Privacy Protection Act was adopted in its 20th state. The law protects the personal information of nonprofit members, donors, and volunteers from unlawful collection or disclosure by state agencies. Colorado and Nebraska, two states that adopted the law in 2024, did so unanimously and with bipartisan support. 92 million Americans can now more confidently engage in private giving thanks to these commonsense protections.

The controversy over nonprofit donor privacy dates back to the civil rights movement. Back then, southern state officials sought to put the NAACP out of business by demanding access to its member lists. That information would quickly have been abused to target and terrorize Americans who supported civil rights. 2024 saw new research illuminate this important chapter of American political history. Drawing on archival research, Dr. Helen Knowles-Gardner from the Institute for Free Speech shows that the donor disclosure demands of Jim Crow officials were a direct assault on the free speech rights of NAACP members – one the Supreme Court thankfully beat back.  

Today, the biggest threat to donor privacy may reside in Arizona, where an anti-privacy ballot measure adopted in 2022 has transformed the state into hostile territory for nonprofits and donors. Called the “Voters’ Right to Know Act,” the law radically expanded the kinds of speech and activities that can trigger donor disclosure requirements for nonprofit groups. The law’s complex and largely untested provisions have left nonprofits with little assurance of what they can say about elected officials or policy ideas without putting their members in harm’s way. 

Prop 211 also scrambled the law regarding what donors need to be reported, seeking so-called “original source” disclosures that require nonprofits to reveal not only their donors, but their donors’ donors. 2024 marked the first big election since Prop 211’s passage. Unfortunately, the law went into effect despite multiple ongoing legal challenges – including from Americans for Prosperity, the group that won the donor privacy case against California at the Supreme Court in 2021. 

We have also been alarmed by efforts in Congress to arm the IRS with new powers to investigate nonprofit donors in the name of combating foreign interference in U.S. politics. While preventing foreign election interference is critical, so is preventing the IRS from being used as a political weapon against American donors and nonprofits. That issue, along with a renewed interest in passing the DISCLOSE Act, will be trends to watch in 2025.

Free speech is a hallmark American value. It allows us to call out corruption, fight against tyranny, and hold our leaders accountable. We have the right to do these things both as individuals and in groups. And when we band together to make ourselves heard, the government has no authority to violate our privacy or chill our free speech.