#BlackLivesMatter.
Ever since those three words were Tweeted out to the world seven years ago, the BLM hashtag has served as a powerful force for amplifying perspectives and advancing progress in America. Tweeting those three words marked a turning point for the fight for racial justice in the 21st century — and particularly so throughout the course of the past three months. Yet for African American attorney Erious Johnson Jr., tweeting those three words turned him into a target — and promptly put him on a government watch list of potential threats to police.
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Back in 2015, it was revealed that Johnson, the director of the Oregon Department of Justice’s Civil Rights Division, was digitally surveilled by his own department “because he used the #BlackLivesMatter hashtag.” The Department made the determination that Johnson’s Twitter activity merited a standalone memo entitled “possible threats toward law enforcement by DOJ employee,” which eventually made its way up to the top deputy of the state’s attorney general for review. And although Johnson reached a settlement with the state in the racial profiling lawsuit he filed, the terms of which required him to step down from the position, the disturbing details of the case raise the following question: If the director of a state’s Division of Civil Rights isn’t safe from the heavy hand of government overreach, who is?
The answer is rooted in the landmark 1958 Supreme Court case, NAACP v. Alabama. While the circumstances surrounding our Civil Rights movement of the 1950s and 1960s are certainly different from the consequences of a social media post today, Johnson’s egregious experience with the Oregon Department of Justice provides a critical reminder of how easily citizens can be targeted because of their beliefs — and precisely why the Supreme Court put key protections in place on a unanimous basis to guard against threats to associational privacy rights.
The case centers around the state of Alabama’s attempt to compel the National Association for the Advancement of Colored People to hand over the names and addresses of its members. Prior to its successful fight before the Court, the NAACP’s ability to operate within the state hinged on its willingness to comply with the foregoing order, hinged on its willingness to subject its members to harassment. As former ACLU president Nadine Strossen explains, such a scheme was “one of the many strategies that Alabama used to try to shut down the effective advocacy of the NAACP” — an organization that “participated in several civil rights activities in Alabama during the 1950s, including the Montgomery Bus Boycott and funding programs for African-American students seeking to attend the state university.”
Publicizing the NAACP’s membership list would have put those on it at risk for severe retaliation. Publicizing the list would have weaponized disclosure to discourage involvement in an organization that was clearly making a difference. As the Court recognized, “revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.“
“Inviolability of privacy in group association,” as the Court added, “may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
In the many decades that have elapsed since the Supreme Court issued its ruling in favor of the NAACP, there have been fresh attempts at the state and federal levels to undermine the rights enshrined in the First Amendment. The stakes, of course, differ greatly from the civil rights forged in the 1950s and 60s, but there are still dangerous efforts underway to force nonprofits to report private information found on their donor lists to the federal government — and therefore impose the very same chilling effect on free speech.
Beneficial ownership legislation, the most recent variation of this vehicle to suppress voices, is particularly invasive in the age of the internet when the amendment’s creation of a vast donor database could put employers and neighbors a single click away from discovering any citizen’s decision to donate to a cause. It is, therefore, as important as ever to protect against any push to streamline the very types of intimidation tactics the Court cautioned about last century. Erious Johnson Jr.’s experience is exhibit A.
The fact that Johnson suffered any repercussions at all merely because he publicized his perspective is shameful enough. The hashtag he typed in a tweet subsequently turned into a license for state-sponsored harassment. Yet, policies like beneficial ownership only compound this threat by expanding the scope of those at risk for retribution to citizens who wish to anonymously advocate for the causes about which they are passionate. Contemplate the consequences if the government had access to a list of all Black Lives Matter supporters instead of those who, like Johnson, choose to broadcast their beliefs to the world. Each and every member of the movement could have been subjected to the same degree of scrutiny.
The decision to disclose one’s beliefs on the political and social issues of our time, whether those beliefs are expressed in the form of a public tweet or as a private $10 donation, should rest solely with each individual citizen. That fundamental freedom aligns just as seamlessly with common sense as it does with our country’s constitution. And so, as Congress considers a matter unanimously settled by the Supreme Court decades ago, the wholeness of any given public policy debate, and indeed the health of our country’s democracy, is directly dependent on its willingness to deliver this latest drive to erode donor privacy the very same fate.
Edolphus Towns is a former U.S. Congressman and chairman of the House Oversight Committee.
