When he toured America in the 1830s, the French writer Alexis de Tocqueville was startled by the degree to which Americans engage in voluntary associations. “Americans of all ages, all conditions, and all dispositions,” he said, “constantly form associations. They have not only commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds—religious, moral, serious, futile, extensive or restricted, enormous or diminutive.”

Freedom of association is implicit in the rights guaranteed by the First Amendment. And that’s no surprise, because early Americans relied on voluntary associations, such as trade groups, churches, or other private clubs, to accomplish goals that neither the market nor the government could easily achieve. These organizations allowed ordinary citizens to combine their resources and amplify their voices. This was particularly true of controversial causes, such as the abolitionist movement. Because antislavery activists faced social hostility, privacy played an important role in protecting participants from retaliation. The ability to associate freely and, when necessary, anonymously helped create a culture of civic engagement that distinguished the young republic from many nations of the time.

But the importance of these rights is much older than that. The right to petition was first proclaimed in Magna Carta in 1215. It was recognized as a fundamental right of subjects of the British crown. The first Continental Congress in 1774 proclaimed the right to petition and assembly.

Those two things usually go together. The freedom to gather together supports the right to petition, because it allows people to express their political views as a group. They may wish to do so anonymously not only because their opinions are unpopular and they fear retaliation, but they might also have religious convictions about donating anonymously, or wish to be shielded from a barrage of spam calls from other groups. Concerted voluntary and organized efforts with anonymous origins can be one of the most effective methods of combatting tyranny.

The major precedent-setting case in which the Supreme Court declared the right to Freedom of Association came in 1958. In that case, Alabama sued the NAACP, demanding that the organization hand over the names and addresses of its members. The real goal of the lawsuit was to terrorize donors. During the 1950s, civil rights activists throughout the South faced economic retaliation, threats, harassment, and violence. Disclosure of membership lists would have made it easier for opponents of the civil rights movement to silence critics.

The Supreme Court, however, ruled that stripping donors of their anonymity violated their right to freedom of association: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

In short, the freedoms of speech and association go hand in hand.

Another victory for freedom of association came in a 2021 case called Americans for Prosperity Foundation v. Bonta. In that case, charities in California were required to renew their registration with the state attorney general annually. To do so, the charities were required to file copies of certain tax forms with the Attorney General. For a decade, the charities were allowed to file redacted forms that kept donor information private. But in 2010 the state prohibited that, threatening to revoke the charities’ licenses and issue fines if they did not disclose the requested information.

The Court held that California’s disclosure requirement violated the First Amendment right to free association. Even though the Court believed that California had a substantially important interest in preventing wrongdoing by charitable organizations, it found that the law requiring disclosure by all charitable organizations was overbroad. They also found administrative convenience to be an insufficient state interest to justify forced disclosure.

The Court also emphasized that disclosure requirements can burden constitutional rights even when there is no evidence that donor information will be intentionally misused. The existence of a government database containing sensitive information may itself discourage participation. Donors may reasonably fear future leaks, unauthorized disclosure, or changes in political circumstances that could expose them to unwanted scrutiny. For that reason, the Court rejected the notion that citizens must wait until actual retaliation occurs before seeking constitutional protection.

“When it comes to the freedom of association,” the Court said, “the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough….”

In April, the Supreme Court ruled in First Choice Women’s Resource Center v. Davenport in favor of donor privacy. In 2023, New Jersey’s Attorney General Subpoenaed First Choice Women’s Resources Center, seeking the names, addresses, phone numbers, and places of employment of its donors. The Attorney General had a vague idea that some of First Choice’s donors may have been misled about the organization’s mission and operation.

First Choice, seeking to protect the identity of its donors, challenged the subpoena with a First Amendment lawsuit in federal court. In April, the Supreme Court ruled that First Choice made sufficient allegations of injury to proceed with its challenge. Justice Gorsuch writing for a unanimous Court said, “Strip away the ability of individuals to work together free from governmental oversight and intrusion, and the freedom to associate may become no freedom at all— individuals deterred, groups diminished, and their protected advocacy suppressed.”

The Supreme Court’s decision represented a win for First Amendment rights, but there is still work to be done. States’ assault on privacy through both political prosecutions and legislation mandating disclosure of private information is relentless. As Irish Lawyer, John Philpot Curran said, “The condition upon which God hath given liberty to man is eternal vigilance.”

An amicus brief filed by the American Legislative Exchange council identified various organizations who were targeted by similar demands for member information, including the NAACP, Catholic Charities of the Rio Grande Valley in Texas, and The University of Virginia. In Texas, the Attorney General made a pre-suit demand on the Catholic Charities of Central Texas for a corporate deposition. The Texas Court of Appeals held that the Texas did not have an across-the board right to demand depositions before even filing a lawsuit. ALEC identified 15 states in which it had been the target of similar prosecutions.

Lawsuits aimed at quashing dissent span the political spectrum. Their purpose is to cause fear, making people reluctant to participate, fretting that all of their information will be published.

The internet and social media have increased the speed and scale with which personal information can be disseminated. Information that once might have remained buried in government records can now be distributed worldwide in a matter of minutes.

The assault on privacy also extends to legislative action aimed at forcing non-profits to disclose information. In 2022, Arizona voters passed Prop 211 – the voters Right to Know Act. Prop 211 required organizations spending more than $50,000 on campaign media spending to disclose any donor who gives more than $5,000. Campaign media spending is defined broadly in the law so that it reaches any reference to a candidate for office within 90 days of an election. The donors that fall under this law are the donors that organizations are most reliant on for continued operations.

Two non-profit organizations and two anonymous donors are jointly challenging the law under the Arizona Constitution, which provides broader speech protection than the First Amendment. The Arizona Constitution says, “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Many states have similar provisions. Targeted litigation in these states can combat the assault on donor privacy.

Arizona is not the only state with an effort to legally require donor disclosure. Nebraska, Iowa, and Hawaii are three states with recent efforts to pass similar laws. A 2023 Nebraska bill would have imposed mandatory reporting requirements on organizations or individuals who contribute $1,000 or more to election-related communications. A 2024 Iowa Senate bill would have required political campaigns to file a report of all individual donations with the secretary of state. Legislation is pending in Hawaii that would require publication of the top three donors to communications funded by non-candidate committees.

Persistence is required to effectively combat the attack on privacy launched by AGs and legislative mandates in numerous states. Disclosure requirements have the potential to chill speech and expose individuals to retaliation and violence. The Supreme Court’s ruling in First Choice upholds standing in federal court, which can sometimes be a barrier to defending one’s rights.

The Amicus brief for the Institute of Free Speech in that case laid out how Alabama used procedural hurdles to bog opponents down in court and avoid a final decision after the Supreme Court’s ruling in NAACP v. Alabama. Even after the declaration that the state court’s order violated NAACP’s associational rights, the state of Alabama continued to pursue the NAACP over the next six years and avoid federal review on the merits.

The brief by the Institute for Free Speech questions “What use is the First Amendment if a government determined to ignore it can manipulate federal jurisdiction to avoid meaningful review?” This is an important question, because the continuing threat of drawn-out litigation can itself be an effective mechanism for silencing political opponents.

A clear decision by the Supreme Court upholding federal jurisdiction is an important first step towards lessening the blow of political prosecutions and mandatory disclosure laws, because ensuring that constitutional claims can be heard promptly protects the First Amendment.

Associational freedom is fundamental to our republic, because it is integral to other freedoms, including freedom of speech, freedom of assembly, and the right to petition. When lawsuits and mandatory disclosure laws threaten to reveal donor information, the freedom of association and freedom of speech are also threatened. Constant vigilance is needed to maintain these freedoms. As the Court stressed in First Choice, “government actions tending to curtai[l] the freedom to associate warrant the closest scrutiny.”