In a 4-3 decision on June 29, the Arizona Supreme Court upheld the state’s nonprofit donor doxing law against a challenge under the Arizona Constitution in Center for Arizona Policy v. Arizona Secretary of State. The court allowed the plaintiffs to proceed with a challenge to the law as it applies to them specifically, but rejected their effort to have the law struck down for all Arizonans.

The continuation of the plaintiff’s as-applied lawsuit is an important victory, but the rejection of a facial challenge is deeply troubling for privacy and free speech. The purpose of donor privacy is to protect Americans from threats and harassment for their beliefs and charitable giving. Requiring people to prove they have already been threatened before granting that protection defeats much of its purpose. Yet that is the likely outcome of the court’s decision to force groups to demonstrate specific injuries each time they seek relief from a disclosure mandate.

History tells us what to expect under such a system: Vindicating donor privacy rights will become an expensive and time-consuming grind. For every donor who successfully navigates the system, countless more will lack the awareness or ability to do so. Many Arizonans will – or already have – simply ceased giving to organizations that may trigger the law’s disclosure requirements as a result.

Therefore, even if some as-applied challenges succeed, all of the major harms caused by disclosure laws will remain: harassment of donors, rampant self-censorship, and a two-tiered justice system that separates the savvy and well-connected from outsiders and the grassroots. For this reason, donor privacy advocates have long fought to strike down sweeping disclosure mandates like Arizona’s in court on facial grounds – and also to institute proactive privacy protections into the law.

Indeed, a key aspect of the U.S. Supreme Court’s pro-privacy decision in Americans for Prosperity Foundation (AFPF) v. Bonta (2021) was that it held California’s disclosure requirement unconstitutional on its face. In that case, the Court considered not only the risk to the plaintiffs and their donors, but also the risks to nearly 300 other organizations that filed amicus briefs in support of AFPF as well as other similarly situated groups. As the majority explained:

“The gravity of the privacy concerns in this context is further underscored by the filings of hundreds of organizations as amici curiae in support of the petitioners. Far from representing uniquely sensitive causes, these organizations span the ideological spectrum, and indeed the full range of human endeavors: from the American Civil Liberties Union to the Proposition 8 Legal Defense Fund; from the Council on American-Islamic Relations to the Zionist Organization of America; from Feeding America—Eastern Wisconsin to PBS Reno. The deterrent effect feared by these organizations is real and pervasive…”

The Supreme Court’s ruling in AFPF protected philanthropy as a whole. The Arizona Supreme Court ruling leaves groups to fend for themselves.

Fortunately, the Arizona ruling will not directly affect ongoing federal challenges to the law or challenges to similar laws in other states. It was decided under a state-specific test, not the “exacting scrutiny” standard articulated by the Supreme Court in AFPF. But the state supreme court’s decision is a reminder that AFPF and other Supreme Court precedents are not a cure-all for threats to donor privacy and associational freedom.

If Arizona’s law spreads to more states – as its proponents intend – it could have a devastating impact on free speech nationwide. Passed via Prop 211 in 2022, the law is one of the most invasive disclosure regimes in the country, forcing nonprofit organizations that name elected officials in their communications to publicly expose their supporters’ names, home addresses, occupations, and employers. Even worse, Arizona’s law exposes entire chains of donors in the search for an elusive “original source” and then plasters those donors’ names directly on the group’s ads. As a result, a donor may have his name publicly attached to a message he never knew about, sponsored by an organization he never donated to.

This frightening and illogical scenario is sure to discourage many Arizonans from funding important causes and organizations. Ultimately, this loss of funding will shield government from criticism by making it harder to promote messages about elected officials and policy issues and by depriving watchdog groups of resources. Ironically, corruption may well grow as voters are increasingly left in the dark about what’s happening in Phoenix.

People United for Privacy Foundation has long warned about the harmful effects of Arizona’s donor doxing law and the importance of defeating similar proposals elsewhere in the country. While the U.S. Supreme Court’s precedents for donor privacy are strong, states and lower courts are far less reliable. Absent another ruling from the High Court building on the foundation of AFPF v. Bonta, the best defense of donor privacy rights against measures like Arizona’s Prop 211 is to defeat them before they become law.