Volume 96.

By Bailie Mittman

Since the birth of the Bill of Rights in 1791, the freedoms protected by the First Amendment have been cherished by all members of this nation. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Over time, courts have acknowledged that the freedom to speak freely means very little if the guarantee is not protected by an additional right: the freedom to associate. Thus, the freedom of expressive association stands as an essential component of an individual’s free speech rights and state infringement on associative rights has the power of potentially chilling speech, especially from an organizational standpoint.
Throughout the relatively short history of the right to associate, the courts traditionally applied strict scrutiny to governmental attempts to intervene in organizations, whether such intervention be via imposing penalties on disfavored groups, requiring disclosure of membership groups, or attempting to interfere with a group’s internal organization or affairs. However, in two recent cases, Citizens United v. Schneiderman and Americans for Prosperity Foundation v. Becerra, two different appellate courts found the freedom of expressive association of either organization was not infringed upon when applying intermediate, exacting scrutiny to state laws mandating the disclosure of nonprofit organizations’ annual Form 990s. These forms, filed yearly with the IRS to maintain tax-exempt status, include a Schedule B that contains a list of the names and addresses of all significant donors to the organization. The plaintiffs in both cases argued the forced disclosure of these donors would chill the organization’s freedom of speech rights by making it more difficult to secure donations from individuals who feared being publicly associated with organizations promoting various minority viewpoints. Ultimately, both appellate courts found these arguments to be unpersuasive and upheld the state laws.

Part I of this Note briefly discusses the history and evolution of the freedom of association before articulating what the doctrine looks like today. Part II summarizes the decisions in Citizens United and Americans for Prosperity Foundation while analyzing the reasoning used by both courts in reaching their decisions. Finally, Part III weighs the merits of this decision by considering the arguments raised by both sides both during and in the wake of the decisions. This Note concludes that the appellate courts veered away from traditional preferences of protecting First Amendment rights by upholding a state-sanctioned, non-political disclosure requirement for non-profit charities. Both appellate courts reached this conclusion by applying a less rigorous scrutiny test than that normally applied to statutes with the potential of affecting First Amendment freedoms.

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