Arizona’s Prop 211 Faces a Second Legal Challenge

March 17, 2023

Arizona’s recently passed Prop 211 is one of the most threatening laws in the country for free speech and personal privacy. Under the law, many Arizona-based nonprofit organizations that speak out about elected officials or public policy could be forced to publicly expose their supporters’ names and home addresses. In today’s hyper-polarized political climate, that’s a gateway to harassment and ‘cancel culture’ tactics targeting Americans for supporting causes they care about.

Now, Americans for Prosperity Foundation (AFPF), a 501(c)(3) organization with a chapter in Arizona, is challenging the law in federal court as an unconstitutional invasion of their members’ privacy and freedom to associate.

“No American should be forced to choose between staying safe or speaking out. Today’s unpopular opinions may very well be tomorrow’s mainstream views. But if we stifle free speech now, it will be harder to find out – if we ever do,” explained AFPF’s Arizona state director Stephen Shadegg in an op-ed for the Arizona Capitol Times.

“Prop 211 gets an ‘A’ for marketing, but an ‘F’ for respecting constitutional rights. This misleading law was sold to voters as a way of fighting ‘dark money,’ but in reality, it serves to muzzle nonprofits that criticize government officials or speak about public policy,” said Heather Lauer, CEO of People United for Privacy Foundation.

Lauer elaborated on the problems with the law in a February op-ed for the Capitol-Times:

“Of course, large funders of political campaign ads should be – and already are – disclosed to the public. But the government can’t just redefine ‘campaign spending’ to mean any political speech it doesn’t like. That’s what the controversy over the law is all about. Courts have spent generations figuring out what types of spending and speech can be regulated in election campaigns. Arizona’s new law ignores that legal precedent and puts privacy and free speech at risk in the process.”

AFPF’s Prop 211 lawsuit cites the Supreme Court’s 2021 ruling in Americans for Prosperity Foundation v. Bonta, which struck down the California Attorney General’s attempt to require nonprofits to turn over their member lists to the state. The Court has recognized on numerous occasions that forced disclosure of an advocacy group’s members or supporters threatens First Amendment freedoms.

Arizona is already defending Prop 211 in state court from a lawsuit filed by another group of Arizona nonprofits and donors who argue the law violates the free speech and privacy protections of the Arizona Constitution. Now defenders of Prop 211 will have to answer to a federal court as well.

As would-be censors in other states look to Prop 211 as a new model for undermining effective advocacy, defeating this draconian law in court is critical to the future of all Americans’ personal privacy and free speech rights.