The Worst of 2022 in Free Speech and Citizen Privacy

October 19, 2022

Threats to free speech and citizen privacy were disappointingly abundant in 2022. Here are some of the lowlights.

Republicans set the stage for future privacy violations with irresponsible rhetoric.

In recent years on Capitol Hill, efforts to pierce citizen privacy and chill free speech have mostly originated from the Democratic side of the aisle. Until now, Republicans have often taken up the mantle of free speech in opposing legislation like H.R. 1 and S. 1 that would expose the personal information of nonprofit supporters.

But in 2022, we saw more Republicans adopting Democrats’ strategy of attacking so-called “dark money.” Their goal was to delegitimize specific groups on the left that protect the privacy of their supporters while speaking about public policy and judicial nominations. The long-term effect of Republicans’ misguided attacks, however, may be newfound momentum in Congress and at the state level for proposals that threaten First Amendment rights to privately support nonprofit causes.

Nowhere was Republican eagerness to turn the tables on Democrats more obvious than at this spring’s Senate confirmation hearings for Supreme Court Justice Ketanji Brown Jackson. As groups on the left spoke out in support of the Biden administration’s nominee, Republican elected officials began crying foul about their donors.

Iowa Senator Chuck Grassley, the Judiciary Committee’s top Republican, decried “the troubling role of far-left dark money groups” during his opening remarks. He even accused one such group of “attacking the independence of the judiciary.” North Carolina Senator Thom Tillis voiced similar sentiments, describing the speech of left leaning nonprofits as “a liberal, dark money court-packing scheme that represents a fundamental threat to the independence of the federal judiciary.”

Republicans who embrace this dangerous narrative will inevitably give weight to calls to do something to address the issue. When that happens, conservative Americans and the causes they support will bear much of the brunt of disclosure’s harms. Skeptical Republicans should question why many Democrats in Congress and at the state level have zealously pushed nonprofit donor disclosure bills for the past decade plus.

Indeed, Democratic Senate Majority Leader Chuck Schumer responded to Republicans’ rhetoric at the nomination hearings by pledging to bring the speech-suppressing DISCLOSE Act to the Senate floor for a vote. Speaking of that…

The DISCLOSE Act rears its ugly head yet again.

For over a decade, the DISCLOSE Act has been one of the most serious threats to First Amendment rights and citizen privacy in the country. Senate Democrats have repeatedly pushed the bill in an effort to stifle criticism and policy discussion from nonprofit organizations. This extreme legislation would force nonprofits that engage in common types of policy communications to publicly report the names and home addresses of their supporters, exposing Americans to harassment and retaliation for their beliefs. As now-Senator Majority Leader Chuck Schumer boasted when first debuting the DISCLOSE Act in 2010, “[t]he deterrent effect” of the bill’s nonprofit donor disclosure provisions “should not be underestimated.”

Senators supporting the DISCLOSE Act are known to make misleading or outright false claims about the legislation, and unfortunately, the media is all too willing to go along with the ruse. The result is that few Americans are aware of the extent of the bill’s threat to their free speech rights. People United for Privacy Vice President Matt Nese detailed the danger in a letter to the Senate Committee on Rules and Administration:

“Make no mistake: The DISCLOSE Act is not a campaign finance bill. It’s an attack on issue advocacy and the ability for nonprofits of all persuasions to engage on policy issues central to their mission. Further, it is an unprecedented assault on the long-held right of Americans to support the nonprofit causes of their choice privately if they so choose. This draconian bill gives the government power it’s never held to surveil the caused-based giving of American citizens, and the legislation is intended to dry up such giving.”

The Senate’s latest attempt to muzzle nonprofits with the DISCLOSE Act stalled on September 22 with an unsuccessful cloture vote. Before that, DISCLOSE was included as one of several speech-suppressing provisions in the so-called “Freedom to Vote Act.” Democratic leaders were so intent on passing these anti-privacy provisions, they even attempted to change the Senate’s filibuster rules in January.

Thankfully, the DISCLOSE Act may have died for now, but it’s a sure bet we will see it again.

Republican leaders in Tennessee push nonprofit donor exposure bill.

Not to be outdone by their counterparts in Washington, D.C., state legislative leaders also put citizen privacy at risk in hopes of chilling the speech of their critics. In Tennessee, Republican leadership pushed S.B. 1005, a bill that would have forced nonprofits to expose their supporters if they make commonplace communications praising or criticizing the actions of elected officials. After an outcry from the nonprofit community, including the NRA and many other conservative organizations as well as some Republican lawmakers, the bill was amended so that nonprofit members would not have to be publicly reported.

As is often the case, proponents of exposing Tennesseans’ support for nonprofits included former candidates with a grudge against groups that had criticized their views and voting records during the previous election year. While those vying for power would naturally love to know who is supporting groups that question their agendas, the right to support nonprofit causes privately is shielded precisely because such surveillance would undermine our right to free speech. Thankfully, nonprofits that benefit from citizen privacy were able to speak up and stop the bill’s donor exposure provisions.

California’s “Disclosure Clarity Act” sets a new standard for absurd donor exposure mandates.

Is it any surprise that California is a national “leader” in violating the privacy of nonprofits and their supporters? Evidently, state officials learned nothing from their loss at the Supreme Court in last year’s Americans for Prosperity Foundation v. Bonta decision. They are already back at it again, with Governor Gavin Newsom recently signing into law one of the most absurd donor exposure measures of all time.

One of the most burdensome and unnecessary forms of donor disclosure is something called a “top funder disclaimer.” These mandates function as duplicative donor reporting rules that force groups to list – and sometimes speak – the names of their top donors in their ads, even though the same information is already publicly available in a government database. While several jurisdictions have experimented with top funder disclaimer requirements for television, radio, and print ads, California’s new “Disclosure Clarity Act” goes much further. It forces small online banner and pop-up ads to carry the redundant disclaimers. It also forces signature gatherers for ballot measures to provide prospective signers with a list of top funders to the committee backing the measure.

These rules may seem silly, but they are no joke. Groups must now shoulder significant administrative burdens to run even low-cost online ads and must shorten their own messages to fit the disclaimers. Adding insult to injury, these top funder disclaimers do not provide citizens with any information that is not already publicly available. Let’s hope this development stays confined to California’s borders.

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As we start to close the book on the 2022 legislative cycle and look forward to 2023, threats to citizen privacy remain as dangerous as ever. Fortunately, there are also people – and state leaders – from both parties fighting back in defense of First Amendment rights.

More on that later.

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