Dark money challenges to disclosure requirements are oftentimes barely disguised attempts at censorship. Groups challenging dark money disclosure laws do not want to subject themselves, their donors or the candidates they support to any criticism, and hope that by enlisting courts in their fight, they will successfully suppress their critics. The First Amendment prohibits the government from suppressing speech, however, and that includes any orders that the courts may issue.
So what do these groups say to shield themselves for their constitutionally faulty appeals?
First, they compare themselves to civil rights groups of the 1960s who were protected from attempts designed to expose their members and subject them to terrorism; a comparison so tenuous a court called it comparing “aardvarks with alligators.” A recent counsel for the National Association for the Advancement of Colored People called it a “strained analogy.” Another scholar used blunter terms: “disgraceful.”
Second, dark money groups attempt to distract from their plans by pointing to relatively rare cases of violence against them. While any act of violence is condemnable, the First Amendment does not permit censorship of innocent persons because of the potential that some third party may commit violence. If it did, then it would permit censoring dark money groups, which have a history of stoking violence.
Prior precedents do not support dark money’s efforts at censorship
To shield themselves, their donors, and the candidates they support from criticism, dark money groups have taken to likening themselves to the NAACP in 1950’s Alabama, whose membership rolls the Supreme Court protected from disclosure.
Members of the NAACP faced serious terror in Alabama in the 1950s, and the government was largely complicit. The State brought a pretextual suit against the NAACP, all to try to get discovery into the identities of the NAACP’s members, which had no relevance to its suit. There was little doubt that Alabama had singled out the NAACP due to the organization’s opposition to its racist policies and was planning to identify their members to make them targets of terrorism.
The Supreme Court stepped in to block Alabama from obtaining the identities of the NAACP’s members. The Court recognized that Alabama had no legitimate reason to seek the members’ identities. It also recognized the harm likely to befall the NAACP’s members if they were disclosed. The NAACP was not seeking anonymity to quiet its critics; rather it sought to protect itself and its members from discriminatory treatment and state-sponsored terror. Given that, it was not hard for the Court to find that Alabama’s request was aimed at the suppression of the NAACP’s views, and thus violated the First Amendment.
Other cases have similarly limited disclosure of memberships under the First Amendment under this same line of reasoning: disclosure focused on exposing and suppressing a particular viewpoint cannot be done without any legitimate purpose.
Dark money groups do not face a similar persecution as these civil rights groups. Campaign finance disclosure does not subject any viewpoint to discriminatory burdens. Rather, the aim of the laws has nothing to do with expression at all: they target transfers of wealth that could be and are used to corruptly influence officials, defraud voters and undermine democracy. Rather than state-sponsored suppression, dark money funders face criticism from concerned and less powerful citizens.
Violence by third parties should be prosecuted, but cannot justify censorship
Dark money’s chief complaint is criticism, but some complaints allege real, but thankfully rare, violence. These acts are not the result of a state “unwilling or unable to control” the violence like those faced by the NAACP, and there is no evidence connecting any violent act to campaign finance disclosure. But condemnable acts of third parties cannot justify suppressing the speech of innocents.
The First Amendment does not permit a “heckler’s veto.” “Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that [others] might react with disorder or violence.” The Court has found an audience’s violence cannot justify censoring a speaker.
Similarly, acts of third parties cannot justify censorship of access to information and the speech that access creates. Even Justice Scalia recognized this point when rejecting a claim for a First Amendment right to anonymity in ballot signatures based in part on fears of violence because “[t]here are laws against threats and intimidation.” Therefore, censorship is not needed or justified.
Dark money groups have also themselves facilitated violence, such as an armed insurrectionary attack on our Capitol. It is no surprise that the anonymity these groups promise can make them appealing to those who are open to more than spirited debate. Afterall, as any time on social media can show, the evasion of accountability that anonymity provides breeds aggression. The violent acts of others, however, do not justify censorship, either of these dark money groups or their critics.
Accountability, not assaults
Neither the perils faced by the NAACP in 1960s Alabama nor the violent acts of third parties can justify the censorship dark money groups seek to achieve through court challenges. Dark money groups, their donors, and the candidates are trying to evade responsibility, not prevent retaliation. Dark money groups seek to avoid accountability by hiding their donors and silencing critics who may speak out against them. “The First Amendment,” however “ensures the right to respond to speech we do not like,” including when the “speech” takes the form of dark money.