Friday, January 23, 2009

Prop 8 Maps and NAACP v. Alabama

California Proposition 8 is the news event that keeps on giving. The latest bit of news that has caught my attention was a rather clever mash-up of Google Maps and the California political contribution disclosure information. Under the California Political Reform Act of 1974, all political contributions over $100 require public disclosure of the donor's name, address, occupation, and other personal information. Prop 8 Maps is a website that plots all of that information on Google Maps, making it searchable by city name or zip code.

As you might imagine, this has made many donors nervous. One group of Proposition 8 supporters already filed suit in Indiana federal court seeking an injunction. The lawsuits alleges that Proposition 8 supporters have experienced “death threats, acts of domestic terrorism, physical violence, threats of physical violence, vandalism of personal property, harassing phone calls, harassing e-mails, blacklisting and boycotts,” and that an the donor information should not be disclosed.

Ironically, there are a couple Ninth Circuit cases that might have protected this disclosure if the supporters of Proposition 8 had been fewer. But because the referendum passed, those cases would not apply. Thus, there doesn't appear to be any case law that would allow withholding donor information of a large political group, even in the face of a hypothetically strident or threatening minority. Eugene Volokh has more discussion here, including whether technological changes (like Prop 8 Maps) should alter the calculus.

I was interested in the case because it reminded me of the situation in NAACP v. Alabama, a civil rights-era case that challenged a somewhat similar law in Alabama that required all corporations to disclose their membership or shareholders. In 1956 the State of Alabama sought to obtain a list of all the members of the NAACP in the state, and the organization refused. The resulting lawsuit was appealed up to the Supreme Court, where the Court recognized a high likelihood of a substantial restraint on the NAACP members' exercise of their right to freedom of association. Justice Harlan wrote:

We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.

The Alabama law was similar to laws in many states, and there was no evidence shown that it was recently passed or specifically tailored to apply to the NAACP. Any resulting infringement of free speech was, therefore, an accidental interference. Accidental interferences with free speech should be resolved by balancing the degree of interference with the state's regulatory interest. In the case of the Alabama law the state had a valid interest in knowing the personal information of corporation members/shareholders, but it was vastly outweighed by the enormous interference with the free speech of organizations such as the NAACP. This was particularly important because there are few alternatives to organized political speech.

Now consider the California law that requires disclosure of political donors' personal information if the donors contribute more than $100. At the outset, it is important to courts recognize a free speech insterest in engaging in anonymous speech, so the compelled disclosure of donor information does constitute a restriction on free speech. But almost all courts have upheld disclosure requirements on political contributions. Like the Alabama law, the California law doesn't appear to have been enacted or amended to specifically apply to the supporters of Proposition 8, so any interference with free speech is probably accidental rather than intentional.

Once again the analysis requires a balancing of the free speech interests and government regulatory interests, but the outcome should be different in the current situation. The threats, vandalism, and harassment experienced by Proposition 8 supporters so far don't come close to the widespread, institutional persecution and prejudice experience by civil rights supporters in Alabama in 1956. Additionally, the California law does not require disclosure of all members of groups favoring the passage of Proposition 8, or even all donors to the cause. The $100 donor threshold is admittedly quite low, but it still represents a lesser infringement on free speech interests than the Alabama law. The California law also presents stronger regulatory interests, since the disclosure of political contributors can help prevent fraud and illegal donations. These interests are designed to ensure the successful operation of the democratic system, and therefore serve some of the same goals as the First Amendment itself.

The bottom line is that the California disclosure law and any initiative using that data are almost certainly legal and permissible under the First Amendment. Projects like Prop 8 Maps are definitely creepy, and as many same-sex marriage supporters have observed, they are the "perfect tool for backlash." I would consider it unconscionable to participate in a similar project. But this is part of the price we pay for maintaining free speech in America.