Donor Privacy Helped Secure the Fight for Black Equality

June 15, 2023 | Brian Hawkins

As we celebrate Juneteenth, the federal holiday commemorating African-American slaves in Texas learning of their freedom a year after the Emancipation Proclamation, it’s worth noting how anonymous giving has been an essential component of the long struggle for racial justice. From the fight against slavery to the movement for equal rights, black social activism has relied on Americans being able to privately support these causes without fear of retribution.

Organizations that fought for the abolition of slavery often faced violent opposition. When one of history’s most famous abolitionists, John Brown, embraced extreme methods of his own to fight back, he turned to a secret cohort of wealthy benefactors known as The Secret Six. The Secret Six provided financial support to Brown’s anti-slavery activities, to include the contentious battles at Bleeding Kansas and the failed slave revolt at Harpers Ferry.

The identities of the Six were kept a secret to protect them from persecution and retaliation from pro-slavery groups at the time, but historical records have since unveiled their heroic efforts. The group consisted of six individuals: Thomas Wentworth Higginson, Samuel Gridley Howe, Theodore Parker, Franklin Benjamin Sanborn, Gerrit Smith, and George Luther Stearns, who pooled their funds to support Brown’s crusade against America’s peculiar institution. Anonymity was key to their ability to fund the fight against slavery without putting their lives or their loved ones in extreme danger from repressive pro-slavery forces.

While enactment of the 13th Amendment to the U.S. Constitution would ultimately abolish chattel slavery, the implementation of Jim Crow laws after the conclusion of Reconstruction would delay black enjoyment of equal protection of the law for another century. The fight to overturn Jim Crow was another inflection point for the necessity of donor privacy for social progress. During the 1950s Civil Rights Movement, social activist organizations relied on anonymous support to protest against the south’s state-sanctioned segregation.

Despite engaging in peaceful acts of protest and speech, the attorney general of Alabama sought to starve these organizations of funding by mandating public disclosure of donors to the state chapter of the NAACP. The NAACP refused these demands, ultimately appealing to the U.S. Supreme Court, who ruled unanimously in the group’s favor in the landmark case, NAACP v. Alabama, and affirmed the right of all Americans to privately support nonprofit organizations.

Nonetheless, the right to privacy in association continues to be litigated. In 2021, the U.S. Supreme Court reaffirmed NAACP v. Alabama in Americans for Prosperity Foundation v. Bonta, reprimanding the California Attorney General’s demand for donor information as a requirement for being able to operate as a charity in the state – information that was not required to be disclosed under existing California statutes. Citing NAACP in his concurring opinion, Justice Clarence Thomas wrote, “The text and history of the Assembly Clause suggest that the right to assemble includes the right to associate anonymously… Laws directly burdening the right to associate anonymously, including compelled disclosure laws, should be subject to the same scrutiny as laws directly burdening other First Amendment rights.”

Despite history repeatedly demonstrating the need for private giving, enemies of speech continue to devise ways to expose nonprofit donors who challenge the status quo. This issue is again being litigated, this time in Arizona, where the state is defending an intrusive donor disclosure regime that threatens the First Amendment rights of Americans who support groups engaged in important policy debates in that state.

Donors should be free to give anonymously to social causes without fear of retribution or harassment. The history of abolitionism and civil rights affirm the importance of donor privacy protections to advance social progress. Absent privacy guarantees, many American citizens and especially marginalized groups would have been unable to advance their causes for equality, and today’s Juneteenth celebrations might look very different.