Shield your free speech

Many people assume that free speech is well-protected in America today. The First Amendment, revered as a cornerstone of American democracy, guarantees that “Congress shall make no law … abridging the freedom of speech.” But history teaches us that speech is not free if speakers can be intimidated into silence. Unfortunately, existing laws and new proposals in states across the country unwittingly enable the harassment of anyone who speaks up on the most important issues of the day.

Those laws started innocently enough. In the hopes of reducing corruption in government, politicians in the 1970s were required to publicly report the names and addresses of donors to their campaigns. Parties and PACs were too. But citizens who did not want their private information in a public government database were not shut out. They could make private contributions to nonprofit groups that advocate for specific causes or policies, such as the National Rifle Association or Planned Parenthood.

These groups are limited in the amount of political activity they can engage in, ensuring that political organizations cannot simply pretend to be nonprofits to avoid disclosing their donors. This system of candidate disclosure and nonprofit privacy creates balance that allows everyone to participate in one form or another. Citizens who are comfortable disclosing their political affiliations can give directly to candidates or parties, while citizens who worry about retaliation for speaking out – whether from government officials, their employers, family members, nosy neighbors, or political activists – can instead make private donations to advocacy groups, who in turn are able to speak with the collective voice of their members. (It should go without saying that people give to nonprofits for many reasons; privacy concerns are just one.)

That balance, however, is under siege. A coalition of activist organizations is intent on forcing all citizen groups that speak about policy to operate like professionalized PACs and violate the privacy of their supporters. But while transparency is crucial for the government, citizens have a right to privacy. Government-mandated reporting of donors to nonprofits is a far cry from requiring politicians to reveal who funds their campaigns. Yet in state legislatures and ballot initiative campaigns across the country, activist groups push for new laws that would do exactly that.

The Founding Fathers would have recognized how dangerous this is. Before signing the Declaration of Independence, they spent years organizing in secret and authoring anonymous pamphlets urging revolution. King George III would have loved to have had a list of supporters of the Sons of Liberty. Once identified, they could have been quickly silenced and the revolution snuffed out.

Threats to free speech did not terminate with British rule over the Americas. In the civil rights movement, the National Association for the Advancement of Colored People (NAACP) had to fight all the way to the Supreme Court to keep its members’ list out of the hands of the Alabama state government. The NAACP understood, as did the Court, that publicizing the identities of its members would put them in danger and harm the group’s ability to function or even exist. Ruling in favor of the NAACP, the unanimous Court noted that “it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.”

While threats to speech are obviously not as severe or widespread today as they were in the colonial era or the Jim Crow south, politically-motivated intimidation tactics remain a problem and the Court’s wisdom in NAACP v. Alabama still ought to prevail. Controversial political figures receive death threats, businesses face boycott campaigns for their stances on issues, and everyday citizens are finding their livelihoods at risk for making small contributions to causes they believe in. Ask Prop 8 supporters in California, or civil liberties advocates in New York. This isn’t a left-right issue.

With the internet, it’s easier than ever to access and weaponize information about someone’s views on controversial issues. Opinions in the mainstream today may seem radical decades later, but public records of your contributions will live online forever. In a country where civic engagement is on the decline – 2014 saw the lowest voter turnout in 70 years – the threat of an internet mob attacking you, your family, or your business is one more reason to stay silent.

Fortunately, we can roll back this culture of intimidation by taking a page from the Founding Fathers and the civil rights movement. They recognized that if supporters of causes could be bullied into silence, speech could not play its crucial role of challenging the establishment and driving social progress. Let’s vow not only to protect the First Amendment, but also to protect the privacy that keeps speech free.

Luke Wachob is the McWethy Fellow at the Center for Competitive Politics.  Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.