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Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of sensitive information can deter free association and thus violate the First Amendment. Those cases all concerned disclosures compelled by statutory or regulatory regimes. None addressed the context where the issue was first recognized, and where it still arises most often: civil discovery. Consequently, the doctrine was muddled before Americans for Prosperity, and that decision did little to clarify it. The three opinions that made up the fractured majority in Americans for Prosperity disagree about what standard of scrutiny applies to First Amendment associational challenges to compelled disclosures. They do not clearly explain how courts should weigh the relevant features of a compelled disclosure: the nature of the disclosed information, the governmental interest in the disclosure, the tailoring of the disclosure to the governmental interest, the degree of threatened harm to the disclosing party, and the risk of (and protections against) further disclosures. And they say nothing about how or whether this confused analysis applies to compelled disclosures in civil discovery, the original context of NAACP v. Alabama.

This article does not offer any answers to these open questions. Instead, it offers an explanation for why they remain unanswered, a prediction about their importance going forward, and a proposal for how to get answers in the future—all based on the observation that the most common context for the compelled-disclosure issue to arise, civil discovery orders, is the least likely to give rise to an appeal. The explanation for why these questions remain unanswered after sixty years is that appellate courts have had too few opportunities to consider which compelled disclosures violate the First Amendment. The prediction is that after Americans for Prosperity more litigants will argue that compelled disclosures in civil discovery violate their First Amendment rights. And the proposal is that courts should use the collateral order doctrine to permit immediate appeals of discovery orders compelling disclosures that threaten First Amendment rights.

Creative Commons License

Creative Commons Attribution 4.0 International License
This work is licensed under a Creative Commons Attribution 4.0 International License.