The First Amendment Adrift?

Alan K. Chen^[*]

A substantial body of thoughtful First Amendment scholarship in recent years has argued that the law of free speech is experiencing an important and troubling ideological drift. These scholars suggest that while a robust free speech doctrine has in the past promoted important avenues for participation in our democracy for disempowered groups, the mantle of freedom of speech has more recently been hijacked by conservatives to serve more questionable substantive goals, such as dismantling government regulatory regimes.^[1] Furthermore, some argue that modern First Amendment law too often prioritizes speech over other important constitutional values, such as equality and privacy, and fails to sufficiently account for power differentials among speakers.^[2] Finally, commentators worry that the expansion of speech through widely available, inexpensive social media platforms has created new problems that existing precedents are ill-equipped to address.^[3]

Ultimately, these arguments are based on the premise that free-speech values are doing their best work when protecting the expression of the marginalized and oppressed and that these new developments in free-speech doctrine threaten, rather than promote, democracy.^[4] In laying out these claims, critics suggest that these developments require a reexamination of our prior commitments to expressive liberty to reflect this new era of speech. This discourse is not limited, moreover, to legal scholarship. Public discussions of free speech have also questioned whether promotion of free speech in contemporary times has come to more effectively serve conservative causes, creating tensions between the old Left and the new Left concerning free speech controversies.^[5]

To others, the First Amendment’s doctrinal neutrality towards speakers and their views is essential to guard against whatever government happens to be in power at a given moment in history, and that recalibrating our understanding of constitutional speech protection is a dangerous enterprise that could later lead to censorship of the very marginalized people that critics are worried about protecting.^[6] Furthermore, others have contended that current First Amendment rules, perhaps with some modest adjustments, are sufficient to accommodate both free speech and the potential harms that new technology may generate.^[7]

The problems identified by the progressive critics of contemporary free speech law are in tension with the First Amendment’s theoretical and doctrinal commitment to government neutrality toward speech without regard to the speaker’s viewpoint or the content of her expression; the constitutional protection of speech at one end of the political spectrum generally requires equally robust protection for speech at the other end. And that’s precisely why free-speech problems are ongoing and thorny, and especially hard to evaluate in the short term. We sometimes see this reflected in unexpected alignments of justices on the Supreme Court in speech cases,^[8] in groups that are ordinarily at ideological odds joining forces on free speech causes,^[9] and in the recent controversy within the ranks of the ACLU in which some have questioned the organization’s commitment to protecting conservative speech and speakers.^[10]

In its most recent term, the Supreme Court decided two major free speech cases, Mahanoy Area School District v. B.L. by & through Levy^[11] and Americans for Prosperity Foundation v. Bonta.^[12] In Mahanoy, the Court examined whether a school district’s sanctions of a student for her profane off-campus expression are prohibited by the Free Speech Clause. Americans for Prosperity Foundation (“AFP”) asked whether the First Amendment prohibits a state government from forcing a charitable organization to reveal the identities of its largest donors. Though the cases addressed widely different First Amendment rules, I suggest one take-away from these decisions is that they illustrate the complexity and nuance of ideological drift claims. We can observe this in part from the cross-ideological alignment of amici that filed briefs in each case. Of course, amicus briefs only tell us what these groups perceive to be in their best interests, though that can still reveal important insights.

While each case makes consequential modifications to existing First Amendment doctrine, they could also have important implications for speakers at both ends of the political spectrum. This makes them difficult to classify as wholly positive or negative developments, despite what immediate reactions might suggest. Whether we “like” the direction of First Amendment doctrine is highly dependent on how confident we are in our predictions about the unanticipated future applications of its legal standards. Who has the better foresight about the impact of these decisions on progressive speakers, the scholars or the advocates? When it comes to assessing ideological drift claims in the short run, I submit that none of us should feel that confident about our predictions.

After discussing the two cases in some detail, the discussion turns to an examination of their doctrinal and ideological significance.

I. Mahanoy Area School District v. B.L.

A. Facts

Toward the end of her freshman year in high school, Brandi Levy^[13] tried out for both her school’s varsity cheerleading squad and a non-school affiliated softball team. To her disappointment, neither endeavor was successful. Instead, the school offered her a position on the junior varsity cheerleading team. Soon after, she expressed her frustration in the same way that most teenagers (and to be sure, many adults) now do—by posting on social media. While at a local convenience store with a friend, Levy used her smartphone to post two images on Snapchat, a popular social media app. The first image was a photo of her and a friend with raised middle fingers and was captioned “Fuck school fuck softball fuck everything.” The second image she posted contained only the caption “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” along with an upside-down smiley face emoji.

Levy posted these images using the “story” function of Snapchat, which meant that they would be seen only by people who were “friends” on her account and would disappear after twenty-four hours. Before that time had expired, however, at least one of her Snapchat friends, a member of the cheerleading squad, took photos of the images Levy had posted and shared them with other team members. Another student showed the images to her mother, who was one of the school’s cheerleading coaches.

The images continued to spread. Some students said they were “visibly upset,” and a short discussion about the posts occurred during a class that was taught by one of the cheerleading coaches. The cheerleading coaches then moved to suspend Levy from the junior-varsity cheerleading squad for the coming school year on the ground that she used profanity in connection with an extracurricular activity. Although Levy then apologized for her actions, the suspension was confirmed by other school officials. Represented by the ACLU, Levy filed a suit challenging the school’s actions, arguing that they violated her First Amendment right to freedom of speech.

B. Doctrinal Background

Since the 1960s, the Supreme Court has set forth a separate First Amendment doctrine for students in public secondary schools.^[14] In doing so, it has recognized that the special interests of school administrators and teachers in providing an education for students mean that the standard doctrinal tools of contemporary First Amendment analysis do not translate perfectly into the school setting. The foundational case is Tinker v. Des Moines Independent Community School District.^[15] Tinker involved a free speech challenge by students in high school and middle school who were suspended after they showed up to school wearing black armbands to protest the war in Vietnam. The students participated as part of a larger protest group, but Des Moines school principals heard about the plan and authorized school officials to ask students to remove any armbands worn at school and to suspend any student who refused to comply. The plaintiffs all defied the policy and were suspended until they would agree to return to school without their armbands. The students sued the school district asking for an injunction barring school officials from punishing them and for an award of nominal damages, but their claims were rejected in the lower federal courts.

In a 7–2 decision, the Court reversed and remanded the case, holding that the armband policy violated the students’ right to freedom of speech under the First Amendment. The Court began by noting that although the “special characteristics of the school environment” must be considered, neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”^[16] The Court observed that the students were engaged in “silent, passive expression of opinion,” and that there was no evidence that their behavior either intruded upon the work of the schools or invaded other students’ rights.^[17] In response to the schools’ assertion that their policy was needed to protect the school environment from disturbances, the Court pointed out that there was no evidence in the record that the students’ wearing of armbands caused any disturbance.^[18] Indeed, out of apparent concern about extensive deference to the schools’ assertions of such interests, the Court went on to say that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”^[19]

Since 1969, the Supreme Court has decided a few cases that limit the scope of Tinker’s free-speech protection for students. In Bethel School District No. 403 v. Fraser,^[20] the Court upheld a school’s suspension of a high school student who gave a speech at an official school assembly that included several statements obviously meant to be interpreted as sexual innuendo. In rejecting the student’s free-speech claim, the Court held that the speech was “plainly offensive to both teachers and students,” and that it was appropriate for public schools to “prohibit the use of vulgar and offensive terms in public discourse.”^[21] The Court has also been less protective of student expression that was communicated as part of a curricular program, such as a faculty-supervised school newspaper, and which, consequently, could be erroneously attributed to the school itself.^[22] In yet another case, the Court upheld a school’s authority to suspend a student who displayed a fourteen-foot banner that contained the words “BONG HiTS 4 JESUS” close to, but outside of the school building, during what was described as a class trip.^[23] Despite the cryptic message on the student’s banner, which some might describe as nonsense,^[24] the student was suspended for violating a school policy against advocating or promoting illegal drug use.^[25] Thus, even before this Term, the free speech rights of students at school were strongly circumscribed in ways that would not be permissible if they were adults.

Although these limitations are well established, student-speech cases have continued to arise in the lower courts. An issue that has continued to require elaboration is whether schools may, in light of their power to protect the school environment and to promote teaching and learning, regulate student speech that occurs away from campus. Particularly given the advent and ubiquity of social media, the lines between what occurs at school and what happens off campus are exceedingly blurry. It was also unclear whether the Tinker rule or some other First Amendment standard applied to school regulation of off-campus speech. It was against this backdrop that the Mahanoy case was decided.

C. Lower Court Rulings

A federal district court ruled for Levy, declaring that the school’s suspension violated her First Amendment rights, enjoining officials to reinstate her to the junior varsity squad, and awarding nominal damages and attorneys’ fees.^[26] It also ordered the school to expunge Levy’s disciplinary record. On the school’s appeal, a panel of the U.S. Court of Appeals for the Third Circuit affirmed.^[27] In doing so, the court held that where a student is engaged in off-campus speech, her speech rights are essentially no different from those of an adult, and that the school’s disciplinary actions were not sufficiently justified to overcome Levy’s rights.^[28] Judge Thomas Ambro concurred in the judgment, claiming that it was inappropriate for the majority to establish a categorical rule that the Supreme Court’s school-speech precedents do not apply to any off-campus speech.^[29] Rather, Judge Ambro argued, the case could be resolved without deciding whether the Tinker standard applied because it was clear to him that Levy’s speech had not caused a substantial disruption to the school environment.^[30] The school district then petitioned the Supreme Court for a writ of certiorari, which the Court granted.

D. The Supreme Court’s Decision

The Court affirmed the Third Circuit’s decision in an 8–1 decision, though it disagreed with the panel decision’s reasoning. Writing for the Court, Justice Stephen Breyer began the discussion by reaffirming the central principles laid out in Tinker—public school students enjoy First Amendment rights even when they are at school, but schools may regulate student speech “in light of the special characteristics of the school environment.”^[31] The Court also reaffirmed that under Tinker, schools are free to regulate speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”^[32] It underscored the idea, referenced in earlier cases, that an important factor in deciding student speech cases is whether the schools are acting in loco parentis, that is, in the place of the parents, when they enforce a speech regulation.^[33]

Rejecting the Third Circuit’s categorical holding that schools may not regulate speech more restrictively than the government may regulate the speech of other people when the speech occurs off campus, the Court acknowledged the reality that the border between on- and off-campus speech is no longer very clear.

The school’s regulatory interests remain significant in some off-campus circumstances. . . . These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.^[34]

Levy had even proposed her own set of examples where schools might regulate off-campus student speech, including when students are traveling to and from school or engaged in remote learning.^[35]

The Court acknowledged the difficulty of articulating a legal standard for determining when speech could be considered to have occurred off campus given the large number of variables that might be relevant in defining off-campus speech, and particularly in light of computer-based learning. Instead, it listed three factors that must be considered in student speech cases. First, it held that schools will rarely be properly acting in loco parentis with regard to off-campus speech.^[36] Second, because regulations of off-campus speech could effectively result in twenty-four-hour-a-day restrictions on students, the Court said that courts must be “more skeptical” of school regulations that reach off-campus speech, and that schools must meet a “heavy burden” to justify regulations that touch on political or religious speech that occurs off campus.^[37] Finally, the Court argued that as “nurseries of democracy,” schools themselves have an interest in protecting students’ unpopular expression, especially when students are off campus.^[38]

Next, the Court recognized that Levy’s speech, while “vulgar,” had First Amendment value, as it conveyed “criticism of the rules of a community of which [she] forms a part.”^[39] Nor, the Court added, did her expression fall within one of the categories of “no value” speech, such as fighting words or obscenity, that would otherwise open the door to government restriction.^[40] And though the Court did not define off-campus speech, it effectively held that Levy’s speech was off-campus because it did not occur at school, took place outside of school hours (she posted on a weekend), was transmitted through a personally-owned phone, and was limited to an audience of her Snapchat friends.^[41]

The Court then addressed the school’s potential interests in restricting Levy’s speech—teaching “good manners,” preventing disruption in the school, and promoting team morale. With regard to the first interest, the Court concluded that the school’s interest was diminished by the fact that the speech took place off campus and on Levy’s own time.^[42] It also factored in the notion that the school was not acting in loco parentis here, since there was “no reason to believe [Levy’s] parents had delegated to school officials their own control of [her] behavior” at a local convenience store.^[43]

Though Tinker makes clear that schools may regulate student speech to prevent disruptions of the school environment, the Court in Mahanoy concluded that there was no evidence of any “substantial disruption” or threat to others’ interests or rights in this case.^[44] Finally, a similar lack of evidence doomed the school’s assertion that suspending Levy from the cheerleading squad was meant to address concerns about team morale.^[45] Both of these responses are evocative of Tinker’s admonition against courts accepting schools’ speech restrictions on the basis of “undifferentiated fear or apprehension of disturbance.”^[46]

Justice Samuel Alito wrote a concurring opinion in which Justice Neil Gorsuch joined. Though he agreed with the Court’s decision and rationale, he wrote separately to ensure that “our opinion not be misunderstood.”^[47] Justice Alito elaborated on the Court’s discussion of how and why schools operate in loco parentis, suggesting that by enrolling their children in public schools, parents might be understood to have consented to limits on their children’s free speech rights.^[48] While the scope of that consent might have been quite broad when students were more frequently sent to boarding schools, the structure of contemporary education means that parents relinquish much less control over their children.^[49] Justice Alito’s opinion argued that the degree of inferred parental consent must be determined in relation to “the measure of authority that schools must be able to exercise in order to carry out their state-mandated educational mission.”^[50] When a school attempts to regulate off-campus speech, Justice Alito explained, parents cannot be regarded as having consented to as much school control, since they have “the primary authority and duty to raise, educate, and form the character of their children.”^[51]

As discussed below, Justice Alito’s opinion can be read as being a bit more skeptical of school speech regulations than Justice Breyer’s opinion for the Court. While Justice Alito acknowledged that there are several circumstances in which off-campus speech falls within the scope of schools’ in loco parentis authority, he cautioned that much of schools’ authority did not reach “student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations.”^[52] At most, he wrote, a school’s attempt to restrict such speech would have to be based on the argument that offensive off-campus student speech “may cause controversy and recriminations among students and may thus disrupt instruction and good order on school premises.”^[53] But a regulation based on this claim would violate the principle that “speech may not be suppressed simply because it expresses ideas that are ‘offensive or disagreeable.’”^[54] In cases of students’ off-campus speech about matters of public concern, he continued, their speech rights against the government are the same as they would be for state regulation of any other person.^[55]

Justice Alito then addressed speech that fell in between on-campus speech and off-campus speech on matters of public concern, acknowledging that these are the types of questions that have generated the most litigation and conceding that he was not trying to set out a particular test. First, there are cases involving student threats to school administrators, teachers, staff members, and other students. Although threats are prohibited by generally applicable criminal law, he noted that some schools have tried to assert authority even more broadly than those laws would permit.^[56] Second, he discussed speech that criticizes or derides school administrators, teachers, or staff. While schools will argue that parents implicitly consent to allow schools to “[d]emand that the child exhibit the respect that is required for orderly and effective instruction,” Justice Alito suggested that did not mean parents waived their children’s rights to “complain in an appropriate manner about wrongdoing, dereliction, or even plain incompetence.”^[57] Lastly, Justice Alito addressed the difficult category involving “criticism or hurtful remarks about other students.”^[58] While acknowledging the seriousness of the problems of bullying and harassment, he warned that “these concepts are not easy to define with the precision required for a regulation of speech.”^[59]

The Court’s sole dissenter was Justice Clarence Thomas, who would have upheld Levy’s suspension. Justice Thomas’s dissent is based on an argument he has made in previous school-speech cases, which is that ordinary citizens at the time of the Fourteenth Amendment’s ratification would have understood that public schools had broad discretion to discipline students.^[60] Looking to state-court cases (though not free speech cases) decided in the late 1800s, he noted that they generally followed the rule that “[a] school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs.”^[61] Justice Thomas criticized the majority opinion for not providing a “good constitutional reason to depart from this historical rule.”^[62] Applying the standard from these state-law cases, he concluded that the school could discipline Levy for her speech in this case because it had the “direct and immediate tendency” to undermine the cheerleading coach’s authority.^[63]

The Court’s student speech cases, Justice Thomas argued, are “untethered from any textual or historical foundation.”^[64] He claimed that in its entire line of school-speech cases, the Court had ignored that at the time the Fourteenth Amendment was ratified, public schools were not viewed as state actors, but as “delegated substitutes of parents.”^[65] Although he conceded that the state and scope of public education was very different at that time, he complained that the Court had never attempted to justify its departure from that understanding.

Justice Thomas made three other points to support his dissent. First, Levy was voluntarily engaged in an extracurricular activity, and there are good historical reasons for schools to have greater regulatory control over off-campus speech related to such activities.^[66] Second, the Court did not consider the fact that speech on social media might necessarily require more regulation than other types of speech, because it can reach from outside of campus to the school and have a “greater proximate tendency” to intrude on the school’s environment.^[67] Third, the majority did not fully analyze whether Levy’s speech was truly off campus, but because speech is now frequently communicated from off campus to the school, it is difficult to define “off campus” with regard to the speaker’s location (though he did not disagree that in this case, the student’s speech should be treated as being off campus).^[68] The Court’s failure to fully analyze these arguments, Justice Thomas suggested, meant that its decision would not provide sufficient guidance for either courts or schools.^[69]

We will return to a discussion of the implications of the decision in Mahanoy after a description of the Court’s other major free speech case this Term, which addresses a very different First Amendment issue.

II. Americans for Prosperity Foundation v. Bonta

A. Facts

The Court’s second major free speech decision this Term addresses a long-standing question about the role of anonymous speech and association under the First Amendment. On the one hand, anonymous speech has been a traditional component of expression since the Federalist Papers were published under the pseudonym “Publius,” suggesting fairly strong evidence that the Framers thought such anonymity to be valuable.^[70] And many of the Court’s prior decisions in this realm have provided great protection from forced disclosure of the identity of speakers and the membership of advocacy organizations to protect them from potential retaliation and harassment. On the other hand, anonymity in contemporary times is sometimes thought to be one of the negative externalities of inexpensive and widespread speech on the internet, particularly on social media platforms.^[71] Furthermore, disclosure is an important component of many campaign finance regulations, and transparency in political donations has been thought to be less protected than spending itself.^[72]

Americans for Prosperity v. Bonta^[73] reflects these tensions. The case involved conservative private charitable organizations^[74] that raise money in California who challenged the state attorney general’s enforcement of a state law requiring charitable organizations to register with the attorney general and to renew their registrations annually. Pursuant to statutory authorization to make rules and regulations concerning the registration and renewal process, the attorney general issued a regulation requiring charities wishing to renew their registration to submit copies of their federal 990 tax forms to the state. Those forms are required under federal law for the charities to maintain their tax-exempt status. Schedule B of the 990 form requires charities to disclose the names and addresses of donors who contributed more than $5,000 in a single tax year. Americans for Prosperity (AFP) and other organizations had previously refused to comply with the regulation regarding disclosure of Schedule B without consequence, but in 2010 the state began to enforce that requirement. The AFP received deficiency letters from the state for a couple of years, and when the attorney general threatened to suspend their registrations and impose fines, they sued to challenge the attorney general’s actions as a violation of their First Amendment rights as well as those of their donors. They claimed that the disclosures were not necessary to enforce the state’s charitable organization laws and that they previously had been subjected to harassment.

B. Doctrinal Background

Since the 1950s, the Supreme Court has decided a number of cases establishing a First Amendment right to anonymous speech and association. Generally, the challenged laws and regulations in these cases involved compelled disclosure of identities as a condition of either being subject to a state regulation (e.g., regulating out-of-state corporations) or participation in some aspect of the political process (e.g., making campaign contributions). Though there are numerous cases in this area of law, discussion of those most relevant to the Court’s decision in AFP follows.

In NAACP v. Alabama,^[75] the Court unanimously overturned a civil contempt judgment against the national civil rights organization after it refused to comply with the state attorney general’s order that it turn over lists including the names and addresses of its Alabama members. The attorney general maintained that this disclosure was required under the state’s laws regulating foreign corporations. Treating the case as asserting the rights of the NAACP’s members, the Court held that the state’s compulsion of membership lists interfered with those members’ rights of association. The Court wrote, “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved.”^[76] Importantly, the Court recognized that the NAACP had submitted uncontroverted evidence showing that “on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”^[77] After acknowledging the right to associate as one of the liberties protected by the Due Process Clause, the Court held that Alabama did not provide a sufficiently compelling interest to justify this intrusion and invalidated the contempt order.^[78]

Two years later, in Shelton v. Tucker,^[79] the Court invalidated an Arkansas law requiring public school teachers to provide the names and addresses of all organizations to which they had belonged or contributed in the preceding five years. The state asserted that the law was justified as part of its power to investigate the competence and fitness of teachers. But while the Court acknowledged that the state’s inquiry was relevant to its interest in assessing teachers’ fitness, it also recognized that the disclosure requirement would impair teachers’ rights to freedom of association, which it linked to free speech rights.^[80] In light of those rights, the Court said that

even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.^[81]

Applying that standard, the Court concluded that the statute’s unlimited sweep was far too broad to serve the state’s asserted interests.^[82]

Disclosure requirements have become fairly routine in the context of the regulation of campaign financing. Although the Court has taken an aggressive stance to invalidate limits on campaign expenditures,^[83] it has at least thus far been slightly more tolerant of laws requiring the reporting of the names of campaign donors.^[84] The Court first comprehensively examined the constitutionality of a range of campaign finance regulations nearly five decades ago in Buckley v. Valeo. The federal law challenged in Buckley required both political committees and candidates to disclose to the federal government the names and addresses of all persons who contributed more than a minimal amount for the purpose of influencing the nomination or election of any person to federal office.^[85]

Relying on NAACP, Shelton, and other prior cases, the Court recognized that such disclosures may infringe on the “privacy of association and belief” guaranteed under the First Amendment and that laws compelling disclosures therefore must be evaluated under “exacting scrutiny.”^[86] This standard requires that such laws may not be upheld based only on a showing of a “legitimate governmental interest,” and that there be a “relevant correlation” or “substantial relation” between that interest and the information required to be disclosed.^[87] Notwithstanding this heightened-scrutiny requirement, the Court found that three of the government’s interests were “sufficiently important” to outweigh the associational rights raised in the case. Those interests were: providing the electorate with information that would help voters evaluate candidates, including where their campaign money comes from; the deterrence of actual corruption and the avoidance of the appearance of corruption by exposing larger contributions to public scrutiny; and the interest in gathering data necessary to detect violations of campaign contribution limits.^[88] Even though it acknowledged that disclosure requirements might deter some individuals from making contributions and could expose some contributors to harassment or retaliation, the Court held that on balance, the government’s interests outweighed those concerns and the requirements seemed to be the “least restrictive means” of advancing those interests.^[89]

The Court also upheld disclosure requirements in a 2010 case involving citizen referendum petitions. In Doe v. Reed,^[90] the Court upheld the State of Washington’s disclosure under the state’s open records act of petitions to place a citizen referendum on the ballot. The petitions in question, which included the signatories’ names and addresses, requested that the state place on its election ballot a referendum to have voters reject a state law that had expanded the rights of domestic partners, including same-sex partners, who were registered as such under a state law. After receiving several open records requests from those opposed to the petition, the secretary of state concluded that the petitions fell within the state’s open records law. After two organizations announced their intent to post the names of petition signers online, the petition’s sponsor and some of its signers sued for an injunction to stop the secretary from releasing the petitions. Their complaint asserted first that the open records act was unconstitutional as applied to all referendum petitions, and second that it was unconstitutional as applied to their petition in particular because there was a “reasonable probability” that disclosure would lead to “threats, harassment, and reprisals” to those who signed the petition.^[91]

Viewing the only issue on appeal as the challenge to the application of the open records act to all petitions, the Supreme Court rejected the petition supporters’ First Amendment claim.^[92] It relied on the cases previously discussed to invoke the “exacting scrutiny” standard, which it articulated as requiring a substantial relation between the disclosure requirement and a “sufficiently important” government interest.^[93] Application of this standard, it stressed, also required that the strength of the government’s interest “reflect the seriousness of the actual burden on First Amendment rights.”^[94] The majority held that the state’s disclosure requirement was designed to advance an “undoubtedly important” interest in preserving the integrity of the electoral process.^[95] In this context, that interest was not limited to detecting fraud, but also to ensuring that the petitions had valid signatures. The promotion of transparency and accountability in the electoral process, the Court continued, was a component of preserving such integrity. It also rejected the petition supporters’ claim that the disclosure requirement was not “substantially related” to promoting those interests, because other measures were in place to validate the signatures. It found that the job of verification is so large that the state could not possibly detect all problems, and that public disclosure served the purpose of supplementing the law by compelling public disclosures, which permit others outside of government to also check signature validity.

Finally, the Court examined whether the strength of the government’s interest reflected the seriousness of the actual burden on the petition supporters’ First Amendment rights. Supporters argued that those who sought the identities of petition signers were interested not in verifying the validity of signatures, but in publicly identifying those signers and subjecting them to harassment and intimidation.^[96] Although the Court conceded that those opposing disclosure in this kind of case could prevail if there was “a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties,” it pointed out that the only evidence of potential harassment pertained to their own petition, whereas the only issue before the Court was whether the disclosure rule was invalid as to all petitions.^[97] The Court observed that not all petitions attract the type of partisan attention that was apparently at issue in this case, but deal with matters such as revenue and budget matters, which are far less likely to result in burdens on their supporters’ First Amendment rights.^[98] However, the Court left open the possibility of an as-applied challenge to the state’s open records law.^[99]

C. Lower Court Rulings

Returning to AFP’s challenge to California’s requirement that charitable organizations disclose the names of their large donors, that litigation proceeded in the lower courts over several years, including extensive preliminary injunction proceedings. When the case went to bench trial, the district court entered judgment for AFP, permanently enjoining the attorney general’s enforcement of the disclosure law. Applying the “exacting scrutiny” standard, the court concluded that the law was not narrowly tailored to advance the state’s interest in investigating the misconduct of charities.^[100] In addition to finding that the disclosures were frequently unnecessary for the state to conduct such investigations, the court made factual findings that the plaintiffs in both cases had suffered threats and harassment, and that its donors were likely to be similarly harassed if their identities were disclosed.^[101] Finally, the district court found that although the Schedule B disclosures were not legally supposed to be available to the public, there was evidence that the state had been ineffective in maintaining the confidentiality of the information it collected.^[102]

The U.S. Court of Appeals for the Ninth Circuit vacated the injunctions and reversed and remanded the cases, directing the district court to enter judgment for the attorney general. It found that the district court erred in applying a “narrow tailoring” requirement and that under the exacting scrutiny standard, the disclosure law served the state’s interest in carrying out efficient and effective investigations, and that the plaintiffs’ rights would not be burdened because, among other things, the attorney general had taken steps to fix the leaking of confidential information to the public.^[103]

D. The Supreme Court’s Decision

In a 6–3 ruling, the Supreme Court reversed the Ninth Circuit, concluding that the district court’s entry of a permanent injunction against the attorney general was proper. Although the majority agreed that the law should be enjoined, there was some disagreement on the proper standard of review. The Court held that there was undoubtedly a First Amendment right of association that was important in facilitating the express rights of speech, assembly, and petition.^[104] Writing only for himself and Justices Brett Kavanaugh and Amy Coney Barrett, Chief Justice John Roberts reviewed the Court’s disclosure cases and wrote that the proper standard of review in such cases was the “exacting scrutiny” standard articulated in Buckley.^[105] That standard demanded that a disclosure law that affected associational rights could be upheld only if there is “a substantial relation between the disclosure requirement and a sufficiently important government interest.”^[106] In doing so, the opinion rejected the argument of the Thomas Moore Law Center, whose case was consolidated with AFP, that the appropriate standard should be strict scrutiny, which would require that the state show that the law served a compelling government interest and that it was the least restrictive means of advancing that interest.^[107] The Law Center argued that only this higher standard of scrutiny would protect charities’ associational rights.^[108] It claimed that to the extent that the Court had applied exacting scrutiny, rather than strict scrutiny, to previously examined disclosure regimes, it had done so in the context of regulations concerning the integrity of elections, where the government’s interests were stronger and therefore called for “less searching review.”^[109]

Chief Justice Roberts rejected this argument, noting that while the exacting-scrutiny standard had first been expressly articulated in a campaign-finance case, the standard was really derived from NAACP v. Alabama and other non-election cases.^[110] He contended that the same exacting scrutiny standard should apply to all types of associational claims, whether they involved association for political, economic, religious, or cultural matters.^[111]

Both plaintiffs had argued, however, that a least restrictive means test was required even as part of the exacting scrutiny test, while the attorney general contended that the law need only bear a “substantial relation” to the government’s interest. Choosing a middle ground, Chief Justice Roberts wrote, “While exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest.”^[112] In a somewhat confusing exposition of the difference, his opinion went on to say that “[a] substantial relation is necessary, but not sufficient” to uphold a disclosure law that affects First Amendment interests.^[113] Rather, “[w]here exacting scrutiny applies, the challenged requirement must be narrowly tailored to the interest it promotes, even if it is not the least restrictive means of achieving that end.”^[114] Ultimately, then, the exacting scrutiny standard apparently requires both that there be “a substantial relation between the donor disclosure requirement and a sufficiently important governmental interest,” “and that the disclosure requirement be narrowly tailored to the interest it promotes.”^[115] Applying that standard, while the Court concluded that the state had an “important interest in preventing wrongdoing by charitable organizations,” it said there was a “dramatic mismatch” between that interest and the broad disclosure regime it had adopted.^[116] The record showed that about 60,000 charitable organizations a year submitted requests to renew their registrations, and were therefore subject to the disclosure requirement. Because the Court found that the record did not reflect that all of this information was integral to the state’s fraud-detection investigations, the disclosure regime was too broad in relation to the state’s interests.^[117]

Finally, the Court addressed whether the case was appropriate for a facial challenge to the state’s disclosure law. It noted that in First Amendment cases, a law may be unconstitutionally overbroad if a “substantial number” of its applications are unconstitutional as compared to its legitimate applications.^[118] Because it found that the disclosure requirement applied to all charities renewing their registrations every year without regard to whether there was a concern about fraud, the Court deemed the disclosure law to be sweeping in its breadth in a way that might chill association (that is, deter people from donating out of concern for their privacy).^[119] Rejecting the dissent’s argument that the plaintiffs could not succeed in their facial challenge unless they carried the evidentiary burden that a substantial number of organizations would be subject to harassment because of the disclosure of their donors’ identities, the Court said that was not a requirement where the law was not already narrowly tailored to serve an important governmental interest.^[120]

Justice Thomas wrote a separate opinion concurring in most parts of the Court’s opinion and concurring in the judgment. His opinion highlights three disagreements with the Court’s opinion. First, he argued that strict scrutiny, rather than exacting scrutiny, should apply to laws that infringe on the freedom of association, which he argued includes the right to associate anonymously.^[121] Second, he disagreed with the Court’s overbreadth analysis. He has previously called into question the Court’s overbreadth doctrine and has disputed the Court’s power to invalidate an entire statute where there are even some legitimate applications of the law.^[122] In a related point, he also argued that even where the Court believed that all future applications of a law will likely be unconstitutional, it still lacks the authority to “resolve the legal rights of litigants not before them.”^[123]

Justice Alito, joined by Justice Gorsuch, also wrote a separate opinion concurring in most of the Court’s opinion and concurring in the judgment. His primary point was that he did not interpret the Court’s prior cases to have definitively decided that exacting scrutiny, rather than strict scrutiny, applied to all compelled-disclosure laws.^[124] As he correctly pointed out, the Court’s earlier compelled-identity-disclosure cases were decided before the modern strict scrutiny doctrine had emerged.^[125] Because he concluded that the California disclosure law failed exacting scrutiny, and therefore also would fail strict scrutiny, he did not believe it necessary for the Court to address the appropriate standard of review in this case.^[126]

Justice Sonia Sotomayor, joined by Justices Breyer and Elena Kagan, dissented. Her primary and overarching point was that the Court had misapplied the compelled-identity-disclosure cases here because it did so without regard to any real concern about harassment or retaliation resulting from such disclosures. Justice Sotomayor first pointed out that not every disclosure regime will have the same impact on the privacy of those whose identities are disclosed. Rather, the Court’s prior decisions required plaintiffs to demonstrate that a disclosure law “is likely to expose their supporters to concrete repercussions in order to establish an actual burden.”^[127] Only if that level of impact is demonstrated, she wrote, should the Court apply any form of heightened scrutiny.^[128] Such harassment from disclosure is more likely, she pointed out, where a group has “dissident beliefs.”^[129] But the Court’s opinion, she contended, meant that any disclosure law would be subject to heightened scrutiny whenever a person subject to that law had “a subjective preference for privacy.”^[130]

She also interpreted the Court’s exacting scrutiny standard to require flexibility such that the more serious the burden on First Amendment rights, the stronger the government’s interest and the tighter the fit between the means and ends that must be shown to justify that burden.^[131] Where there is only a limited burden, she argued that the law only demands that the government show that the “means achieve its ends,”^[132] essentially a rational basis standard.

Justice Sotomayor suggested that California would easily meet this lenient standard in defending its disclosure regime. First, she argued that the state clearly had significant interests in detecting charitable fraud and that the Court had understated the importance of the disclosure requirements.^[133] She also concluded that the disclosure requirements were “properly tailored” to advance those interests.^[134]

To illustrate the point, she compared the Court’s decisions in Shelton v. Tucker and Doe v. Reed. In Shelton, the case where the state required all public school teachers to disclose all organizations to which they recently belonged or contributed, the record showed a “significant risk” that the information would be publicly disclosed and that there would be pressure on school boards to fire teachers who belonged to unpopular organizations.^[135] Concerns about repercussions from the disclosures were heightened, she argued, because of the asymmetry in power between teachers and those in charge of hiring them.^[136] The Court therefore required that the law must “narrowly achieve” the state’s interests.^[137] In contrast, in Doe, the Court found “scant evidence” that the disclosure of petition signers’ names would lead to any type of negative consequences.^[138] Justice Sotomayor argued that because of the limited burdens imposed by the State of Washington in Doe, the Court “required a correspondingly modest level of tailoring” and rejected the facial challenge to the law’s disclosure requirement.^[139]

To underscore her argument that not all people subject to disclosure requirements are likely to have their associational rights chilled, Justice Sotomayor contended that “[t]he average donor is probably at most agnostic about having their information confidentially reported to California’s attorney general.”^[140] She also pointed to research that suggests that most donors actually prefer to publicize their charitable contributions.^[141]

Finally, Justice Sotomayor’s dissent disputed the Court’s conclusion that the California disclosure law was facially unconstitutional, arguing instead that the impact on the association rights of most organizations was purely speculative.^[142] Because there was some evidence that the challengers in this case had been subject to harassment, she said she would have been “sympathetic” to a ruling that invalidated the law as applied to them (though she still would have disagreed).^[143]

III. Doctrinal Significance and Ideological Implications

A. Refinement of First Amendment Doctrine

Both of the Court’s major free speech decisions in the October 2020 Term altered First Amendment doctrine in important ways, though AFP will probably have a larger impact for reasons discussed below. After discussing the doctrinal significance of each case, I return to the question of ideological drift in First Amendment law and discuss whether either of these decisions can be confidently classified as more beneficial to progressive or conservative speakers or contribute to a trend toward either.

In purely doctrinal terms, the Court’s decision in Mahanoy about student speech is fairly narrow. Given that Justice Breyer wrote the opinion, it is unsurprising that the Court stayed away from bright line rules, instead favoring a nuanced, balancing approach.^[144] There were already a large number of contexts in which schools could regulate student speech when their expression was connected to school activities but not physically on campus, and that has been broadened by the expansion of digital communication technologies. For example, the advent of remote learning during the COVID-19 pandemic meant that students were routinely at home while speaking “at” school. It is therefore hard to fault the Court for failing to come up with a more rigid categorical rule.^[145] Even if it had affirmed the Third Circuit and held that all off-campus student speech is protected as if the speakers were any other person, there would continue to be disputes about when the speech was truly off-campus. This means that there is likely to continue to be lots of student speech litigation in the lower courts, but at least the Court has made it fairly clear that it is skeptical about school regulation of off-campus speech and that schools will bear a “heavy burden” to justify regulation of student speech that is political or religious.^[146] And despite their attempts to distinguish their approaches from the majority’s, neither Justice Alito’s concurrence nor Justice Thomas’s dissent articulated a bright line rule defining off campus speech, either. While lacking certainty, the Court’s opinion continues to support Tinker’s distinction between speech that actually disrupts the school environment and political expression that only mildly upsets others.

The Court’s decision in AFP is more doctrinally significant in that it modifies the standard for evaluating the constitutionality of compelled-identity-disclosure laws. The battle here was over the meaning of the so-called “exacting scrutiny” standard, which is different from the traditional tiers of strict and intermediate scrutiny the Court uses in other First Amendment cases where the government is regulating, rather than compelling, speech. As articulated by Chief Justice Roberts, the test has two components. First, the state must show that there is “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.”^[147] Although the “substantial relation” language in other cases already refers to the fit between the means chosen by the state and serving its interests, the Court added that such laws also must be “narrowly tailored to the government’s asserted interest,” though they need “not [be] the least restrictive means of achieving that end.”^[148] To those familiar with tiers of constitutional scrutiny, requiring that the law must be narrowly tailored appears superfluous to the requirement that it be substantially related to the state’s interests. What could the Court have meant?

The roots of the confusion over language may be found in other First Amendment contexts, where the Court has invoked “narrow tailoring” language under both strict and intermediate scrutiny. In cases involving government restrictions on speech that are either viewpoint-based or content-based, the Court demands that the law be “narrowly tailored” to serve a “compelling government interest.”^[149] In that context, narrowly tailored also means that there must be no less discriminatory or restrictive alternatives to serving the state’s goals.^[150] That is clearly not what AFP requires.

But under the Court’s intermediate scrutiny cases—for example, when it assesses content-neutral restrictions on speech in a public forum—it also requires that the law be “narrowly tailored,” though here it must be tailored to serve a “significant government interest,” and the government must leave open “ample, alternative channels of communication.”^[151] In Ward v. Rock Against Racism, the Court clarified that narrow tailoring under intermediate scrutiny does not mean that the challenged law has to be the least restrictive means of carrying out the government’s interest.^[152] However, the law’s means must be “not substantially broader than necessary to achieve the government’s interest.”^[153] What that has come to mean in subsequent applications of the intermediate-scrutiny doctrine is that while the government does not have to show that its chosen means of regulation is the least restrictive alternative, narrow tailoring nonetheless requires that the government show that it at least considered other less restrictive measures. As the Court held in McCullen v. Coakley, also written by Chief Justice Roberts, in intermediate scrutiny cases “the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.”^[154] In AFP, the Court appears to be invoking this understanding of the narrow tailoring standard because it did not require that the law be the least restrictive alternative, but faulted the state for not “even consider[ing] alternatives to the current disclosure requirement.”^[155] As the Court concluded, the state “must instead demonstrate its need for universal production in light of any less intrusive alternatives.”^[156]

For supporters of robust disclosure laws, the Court’s decision is surely frustrating, but it’s important to note that only three justices voted that the exacting-scrutiny standard applies to all government-disclosure laws. Justice Thomas dissented, arguing that the Court should apply strict scrutiny,^[157] and Justices Alito and Gorsuch would not have reached the issue in this case.^[158] Needless to say, a strict-scrutiny requirement would lead to the invalidation of many, if not most, disclosure laws. The third position, embraced by the three dissenters, argued that exacting scrutiny should apply only where the law “is likely to expose their supporters to concrete repercussions in order to establish an actual burden.”^[159] Doctrinally, then, there is actually a three-three-one split (with two undecided) on the Court about the appropriate First Amendment standard, leaving ongoing uncertainty for the lower courts.

The biggest fear of pro-disclosure advocates was that AFP would depart from the Court’s prior tolerance for disclosure laws in the campaign-contribution context. But the Court did not overtly signal its views on future challenges to such disclosure laws. Rather, it appeared to embrace the idea that exacting scrutiny applies to all government-disclosure laws. Given the fact that the exacting scrutiny standard originated in Buckley v. Valeo, a campaign donor disclosure case, AFP did not alter the standard in that context. However, as just discussed, the Court’s opinion does add a burden on the government to show that it considered alternative measures under exacting scrutiny, which could make it slightly harder for the government to defend campaign-disclosure laws. But the distinction between the campaign-disclosure cases and other right-of-association cases has typically been not in the applicable standard of review, but in the Court’s conclusion that campaign disclosures serve important interests in the electoral context (as even the Law Center conceded).^[160] If the majority of the Court modifies its view on the importance of such interests, that would be a more critical development than any produced by AFP.

Finally, the Court made it clear that the same First Amendment standard applies to disclosure laws that affect the associational rights of the wealthy and powerful as to those that affect the marginalized and dissident. The dissenters made clear that they believe the right of association is more important for dissident groups.^[161] The failure to address that distinction certainly supports the concerns of some of the scholars who are worried about ideological drift. One might argue that powerful people are less susceptible to intimidation resulting from public disclosure of their associations with unpopular political causes than the average person and therefore need less constitutional protection for their activities. On the record developed in the district court, there was evidence of actual harassment targeted at AFP and the Law Center that provided at least some support for their associational claims. But it should be noted that there was no connection mentioned between that past harassment and California’s disclosure laws, which were not even being enforced until more recently. Both AFP and the Law Center often take public stances on controversial issues, making them potential targets of harassment even without disclosure of their donors’ names. Then again, the central claim here was about their donors’ rights of political association.

B. Ideological Implications

The doctrinal rulings in Mahanoy and AFP were important, but not dramatic. But as I often tell my students, most First Amendment decisions are only a little bit about the case at bar and a lot about how those decisions will play out in future cases. Returning to the topic of ideological drift, can we understand Mahanoy as protecting progressive or conservative speech interests? Considering what we might call traditional progressive policy concerns, we can imagine that an aggressively pro-speech decision could be worrisome to those who would like schools to be able to protect marginalized persons from bullying, sexual harassment, and identity-based hate speech, which are surely valid concerns.^[162] Conservatives, on the other hand, might be more inclined to desire a First Amendment doctrine that was sufficiently protective of conservative student speakers who might engage in speech that might be considered racially insensitive, in favor of robust Second Amendment rights, or critical of social welfare policies. Justice Alito’s concurring opinion could be viewed as an attempt to bolster the free-speech standard lest schools engage in the much bemoaned “cancel culture” of conservative students for their expression.^[163] Furthermore, it doesn’t take much imagination to foresee an ideologically charged debate over school curriculums, as the recent controversies surrounding the teaching of critical race theory (or what legislators believe to be critical race theory) in public schools has already exhibited.^[164] Student speech on such matters could trigger many concerns about censorship going forward.

But it’s hard to predict how free speech doctrine might affect speakers of different ideological valences, because the doctrine itself is at least formally committed to requiring viewpoint and content neutrality on the government’s part. While we might have a guess about how a Supreme Court decision might play out in future litigation, the truth is that the rules emerging from one case might easily be applied to protect the speech of someone at the other end of the ideological expression in the next. Furthermore, there may be temporal variations in how speech cases apply. The First Amendment was routinely invoked to protect the rights of protestors during the civil rights movement from hostile audiences and law enforcement officials indifferent, or even worse, toward protecting those protestors. But those same cases and principles might today be invoked to protect the speech rights of white supremacists (at least where their protests remain nonviolent). The natural impulse of most people, including government officials, is to want robust speech protection for those who agree with your position, but be less enthusiastic about protecting the expression of those with whom you vehemently disagree.^[165]

How did such impulses play out in Mahanoy? One way to assess this is to look at the positions of groups of differing ideologies in a particular case. Though there is nothing scientific about this, it at least signals what groups’ public positions are on a particular dispute. There were thirty-four amicus briefs on the merits filed in the Supreme Court in the Mahanoy case, nine in support of the school district, one in support of neither party, and twenty-four in support of Levy.^[166] In support of the school’s efforts to discipline Levy were two briefs from what would likely be considered progressive groups—The Cyberbullying Research Center and the National Education Association.^[167]

Multiple interest groups of different ideological stripes filed amicus briefs in support of Levy, who was directly represented by the ACLU, an organization most commonly associated with the Left. In support of the students’ right to free speech were nine conservative groups or coalitions, four progressive groups or coalitions, and the Foundation for Individual Rights in Education (FIRE), which identifies itself as a nonpartisan group and has advocated for both conservative and progressive speakers.^[168] It should be noted that one can’t simply tally the number of briefs filed, as many of them were submitted on behalf of larger numbers of ideologically allied groups.

A sampling of some of the briefs provides a window into the concerns of various ideologically diverse groups. For example, one of the progressive-side briefs supporting Levy was filed on behalf of the Advancement Project, a civil rights advocacy group, the Juvenile Law Center, and thirty-eight other organizations.^[169] This brief expressed concerns about the expansion of school discipline to students engaged in off-campus speech. As they argued, “Expanding the authority of schools to regulate off-campus student speech has ‘ominous implications’ for students of color and other marginalized student groups who already face disproportionate and excessive discipline, particularly for so-called ‘infractions’ that permit discretion and invite subjective interpretation.”^[170] They expressed concerns about the subjective nature of Tinker’s material-and-substantial-interference standard in the hands of powerful school administrators.^[171] At the same time, they noted that this case did not involve threats of violence or harassment of others, suggesting that their concerns in such cases would be different.

On the same side were the conservative Alliance Defending Freedom and the Christian Legal Society.^[172] Their amicus brief expressed fears that schools would take action against student speakers who engaged in off-campus religious expression that others might find objectionable or offensive, particularly if such speech included comments that expressed religious objections to the LGBTQ community, abortion, or other sensitive subjects.^[173] Interestingly, their brief also sought to distinguish regulation of valuable religious speech from harassment. They wrote that “[p]rivate conversations—either on or off campus—are also not harassment where a student advocates for her religious beliefs or encourages others to follow religious principles.”^[174]

Perhaps the cross-ideological groups that filed briefs in support of Levy reflect that students’ concerns about school censorship of their speech are highly contextual. They may be contingent on local politics and whether the school boards are controlled by more progressive or more conservative members. Or, ultimately, they may reflect that giving broad discretion to school officials to impose speech restrictions can be problematic because, like other government officials, they may enforce those restrictions in part based on their own political proclivities.

Moving on to AFP, it’s not difficult to foresee the potential ideological implications of that decision. The conventional wisdom from the immediate commentary on the case seems to be that the Court in this case split along pure ideological lines, with the six conservative members voting to strike down California’s disclosure law and the three more liberal members dissenting.^[175] Conservatives may hail the decision first as preventing the targeting of wealthy and powerful interests that support their causes to the disclosure of their identities and association with such causes that might result in not just “harassment,” but protests and boycotts that could affect them economically. Thus, there is certainly here, as in Mahanoy, an echo of concerns about so-called “cancel culture.” Conservatives have complained about large-scale boycotts of corporations because of their political views or associations,^[176] though they have increasingly turned to boycotts of businesses for their liberal political views in recent years.^[177] Disclosure laws, of course, can expose the views of individuals and organizations and subject them to such responses.

But probably of even greater value to conservatives further down the road is the possibility that AFP would open the door to reconsideration of the constitutionality of many campaign-finance reporting laws. The Roberts Court has already made substantial inroads to pushing back against government efforts to regulate campaign finance laws.^[178] In recent years, there have been strong legislative pushes to force more disclosure of so-called “dark money” in political campaigns—financial support that comes from organizations that do not have to disclose their donors.^[179] AFP could potentially make it easier to challenge efforts to make such organizations report more information about the source of their funding, though even the challengers to the California disclosure regime appeared to concede that in the electoral context, the government’s interests are stronger than in the case of charitable organization regulation.^[180] As discussed earlier, whether AFP leads to reconsideration of that view would be critical to the future of campaign finance disclosure laws.

But if these concerns are realistic, why did so many progressive organizations support the AFP’s claims in this case? As the Court pointed out:

The gravity of the privacy concerns in this context is further underscored by the filings of hundreds of organizations as amici curiae in support of the petitioners. Far from representing uniquely sensitive causes, these organizations span the ideological spectrum, and indeed the full range of human endeavors: from the American Civil Liberties Union to the Proposition 8 Legal Defense Fund; from the Council on American-Islamic Relations to the Zionist Organization of America; from Feeding America—Eastern Wisconsin to PBS Reno.^[181]

Thus, as in Mahanoy, amicus briefs were submitted in support of the AFP and the Law Center from groups at both ends of the political spectrum.^[182]

First, of course, the case from which these challenges originate was NAACP v. Alabama,^[183] where the government’s disclosure law was a thinly disguised effort to expose NAACP members to harassment and violence. Though progressives may wish to pare the doctrine back, particularly as applied to wealthy and powerful interests, it is unlikely that they would want to go so far as to overrule that seminal decision or to have the Court relax the standard of review in ways that would diminish the right of association.

For example, an amicus brief by the progressive Council on American-Islamic Relations (CAIR) argued that the Ninth Circuit’s decision applied too lax of a standard to the California charitable contributions disclosure law.^[184] CAIR argued that in its legal challenges to the placement of innocent Americans on terrorist watch lists were based on the constitutional right to association. It asserted that

the federal government’s various watchlist programs label thousands of innocent Americans as known, suspected, or potential terrorists. Once subjected to this stigmatizing label, individuals, their families, and their associates experience intrusive scrutiny. Adverse consequences of designation include surveillance, border detentions, interrogations about religious practices, denials of employment credentials, and electronic device searches.^[185]

Consistent with the AFP’s arguments, CAIR contended that the right of association was not dependent on “any risk of public disclosure or public harassment.^[186]

Another amicus brief was filed by the ACLU, the NAACP Legal Defense and Educational Fund, and other progressive groups (ACLU amici).^[187] The emphasis in their brief was, similarly, that the Ninth Circuit had applied a lax standard of review that, if adopted across the nation, would undermine the associational interests of many groups, and dissident groups in particular.^[188] Like the AFP, the ACLU amici contended that on the evidentiary record there was evidence of a strong risk of public disclosure, noting that if there had not been, the state’s interests might have been sustainable.^[189] But it is from that public disclosure that the real threat of harassment arises. Notably, the ACLU amici took care to distinguish the type of disclosure mandated by the state in AFP from disclosures required by many campaign finance regulations. Though it argued that exacting scrutiny should still apply to such laws, they cautioned the Court against making a broad pronouncement that would risk their invalidation. They argued that “public-disclosure requirements serve especially compelling interests in the context of electoral campaigns, where transparency furthers the interest in ‘curbing the evils of campaign ignorance and corruption.’”^[190]

It’s worth noting that while these briefs argued in support of the exacting scrutiny standard, it was the version of that standard the Court had relied on in Doe v. Reed. In order to be upheld, a compelled-identity-disclosure law must be substantially related to a sufficiently important interest, and the strength of the state’s interest must reflect the seriousness of the actual burden on First Amendment rights.^[191] Not surprisingly, since this element had not really appeared in earlier decisions, these briefs did not discuss the additional narrow-tailoring requirement articulated in the Court’s opinion.

For at least two reasons, however, there is cause for progressive groups to embrace the narrow-tailoring requirement. First, because the position of those groups was generally in favor of the exacting-scrutiny requirement where disclosure laws affected marginalized persons, imposition of a heavier burden on the government should be welcome. Second, the incorporation of the idea that narrow tailoring requires the state to demonstrate that it considered other alternatives before implementing the law enhances intermediate scrutiny in all First Amendment cases. There had long been a complaint that the Court’s intermediate-scrutiny standard had been watered down so much that it did not have teeth. Specifically, critics argued that the narrow-tailoring component of intermediate scrutiny was too deferential to the government, essentially moving First Amendment scrutiny toward a rational basis standard.^[192] But the Roberts Court, beginning with its decision in McCullen v. Coakley, has reinvigorated First Amendment intermediate scrutiny by infusing the narrow-tailoring standard with the requirement that the government show that it considered alternative regulatory options before enacting the law in question.^[193] Its decision in AFP extends that requirement to freedom-of-association claims.

This tougher standard already has been invoked by advocates in the lower courts in support of First Amendment speech claims for progressive causes, and there have been recent lower-court decisions that have incorporated this into their analysis. For example, the McCullen standard has been used in the U.S. Court of Appeals for the Tenth Circuit to invalidate local ordinances that restricted the ability of homeless persons to solicit money on public sidewalks^[194] and imposed burdensome parade permit requirements on environmental groups.^[195]

Will this heightened form of intermediate scrutiny benefit conservative groups as well? Undoubtedly. But paring the standard back to a weaker form will adversely affect speech, and the burdens of those types of regulations will almost always fall more heavily on marginalized speakers. Accordingly, it is worth it to progressive groups to consider whether their best long-term interests are served by attempting to dilute the standard in the first instance.

To be sure, the fact that progressives sometimes support conservative speech claims and vice-versa in particular cases does not completely rebut sophisticated ideological-drift claims, which are premised on broader structural changes in free speech doctrine. But the fact that many cases are complicated to assess from an ideological perspective at the microlevel does suggest that ideological-drift claims are complicated and difficult to measure. The consequences of doctrinal choices made by the Court today are too difficult to project over the long run. In that regard, this Term’s First Amendment decisions are no different.

---

* Thompson G. Marsh Law Alumni Professor, University of Denver Sturm College of Law. Professor Chen is also a member of the Advisory Board of the Colorado Lawyers’ Chapter of the American Constitution Society and the co-Faculty Advisor of the University of Denver Student Chapter of the American Constitution Society.

^[1] See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953 (2018); Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547 (2018); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133 (2016). Though it has perhaps been exacerbated by the expansion of powerful privately-owned speech platforms run by social media companies, the essence of this debate is not new. J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L .J. 375 (1990).

^[2] See, e.g., Alexander Tsesis, Dignity and Speech: The Regulation of Hate Speech in A Democracy, 44 Wake Forest L. Rev. 497 (2009); Luke A. Boso, Anti-LGBT Free Speech and Group Subordination, 63 Ariz. L. Rev. 341 (2021).

^[3] See Wu, supra note 1.

^[4] See, e.g., Toni M. Massaro & Helen Norton, Free Speech and Democracy: A Primer for Twenty-First Century Reformers, 54 U.C. Davis L. Rev. 1631 (2021).

^[5] Compare Andre Marantz, Opinion, Free Speech is Killing Us, N.Y. Times, (Oct. 4, 2019), with Suzanne Nossel, Opinion, Those Who Exercise Free Speech Should Also Defend It – Even When It’s Offensive, L.A. Times, (June 19, 2020).

^[6] See, e.g., Nadine Strossen, Counterspeech in Response to Changing Notions of Free Speech, 43 Hum. Rts. 16 (2008).

^[7] See Mark Tushnet, The Kids Are Alright: The Law of Free Expression and New Information Technologies, (Harv. Pub. L., Working Paper No. 21-09, 2020).

^[8] For example, by a 5–4 vote, the Supreme Court struck down a state flag desecration law on free speech grounds. Texas v. Johnson, 491 U.S. 397 (1989). The majority opinion was written by the liberal Justice Brennan, who was joined by Justices Marshall and Blackmun, considered to be more liberal members of the Court, but also by Justices Scalia and Kennedy, who were more conservative. The dissents were written by Justice Rehnquist, considered to be a conservative, along with Justices White, and O’Connor, whom I would classify as moderates, and by Justice Stevens, who was on the Court’s left.

^[9] See infra notes 162–195 and accompanying text.

^[10] Michael Powell, Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis, N.Y. Times (June 6, 2021); David Cole, Defending Speech We Hate, ACLU (June 6, 2021); Michelle Goldberg, Opinion, The Left Needs the A.C.L.U. to Keep Defending Awful Speech, N.Y. Times (June 7, 2017); K-Sue Park, Opinion, The A.C.L.U. Needs to Rethink Free Speech, N.Y. Times (Aug. 17, 2017).

^[11] Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2043 (2021).

^[12] Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).

^[13] Although Ms. Levy’s lawyers filed her case using her initials, as is frequently done to protect the privacy of minor plaintiffs, she and her father have made numerous media appearances that make it clear that her family has no problem with identifying her by name. The description of the facts is drawn from the Supreme Court’s opinion.

^[14] Conversely, the Court has almost never touched on the issue of free speech for college students. Mahanoy, 141 S. Ct. at 2038–44.

^[15] Tinker v. Des Moines Indep. Cmty. Sch. Dist, 393 U.S. 503 (1969).

^[16] Id. at 506.

^[17] Id. at 508–09.

^[18] Id. at 508.

^[19] Id.

^[20] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).

^[21] Id. at 683.

^[22] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 263, 271 (1988) (rejecting a First Amendment claim by students who worked under the supervision of a faculty member on an officially sanctioned school newspaper after the school refused to publish two articles it deemed to include inappropriate content).

^[23] Morse v. Frederick, 551 U.S. 393, 397 (2007).

^[24] See Mark V. Tushnet, Alan K. Chen & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (2017); Joseph Blocher, Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment, 63 Duke L.J. 1423 (2014).

^[25] Morse, 551 U.S. at 401–02.

^[26] The district court first granted Levy’s request for a preliminary injunction. B.L. v. Mahanoy Area Sch. Dist., 289 F. Supp. 3d 607 (M.D. Pa. 2017), and later granted her summary judgment and awarded the other specified relief. B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429 (M.D. Pa. 2019).

^[27] B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020).

^[28] Id. at 178.

^[29] Id. at 194 (Ambro, J., concurring in the judgment).

^[30] Id. at 195.

^[31] Mahanoy, 141 S. Ct. at 2044 (citation and internal quotation marks omitted).

^[32] Id. at 2045 (citation omitted).

^[33] Id.

^[34] Id.

^[35] Id.

^[36] Id. at 2046.

^[37] Id.

^[38] Id.

^[39] Id.

^[40] Id.

^[41] Id. at 2047.

^[42] Id.

^[43] Id.

^[44] Id. at 2047–48.

^[45] Id. at 2048.

^[46] Tinker v. Des Moines Indep. Cmty. Sch. Dist, 393 U.S. 508, 508 (1969).

^[47] Mahanoy, 141 S. Ct. at 2049 (Alito, J., concurring).

^[48] Id. at 2051.

^[49] Id. at 2051–52.

^[50] Id. at 2052.

^[51] Id. at 2053.

^[52] Id. at 2055.

^[53] Id.

^[54] Id. (citations omitted).

^[55] Id. at 2056.

^[56] Id. at 2056–57.

^[57] Id. at 2057.

^[58] Id.

^[59] Id.

^[60] Id. at 2059 (Thomas, J., dissenting); see also Morse v. Frederick, 551 U.S. 393, 419 (2007) (Thomas, J., concurring). The relevance of the Fourteenth Amendment’s ratification date as the measuring point for the original public meaning does not, of course, consider the fact that the First Amendment only applies to the States because the Court has held that its rights have been incorporated through the Due Process Clause, which did not occur until the early twentieth century. Gitlow v. New York, 268 U.S. 652, 666 (1925).

^[61] Mahanoy, 141 S. Ct. at 2061.

^[62] Id.

^[63] Id.

^[64] Id.

^[65] Id.

^[66] Id. at 2062.

^[67] Id.

^[68] Id. at 2063.

^[69] Id.

^[70] McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 360–61 (1995) (Thomas, J., concurring in the judgment).

^[71] See, e.g., Alexander Tsesis, Terrorist Speech on Social Media, 70 Vand. L. Rev. 651, 658 (2017) (“[T]he internet emboldens terrorists by providing them with the tools to post anonymously and inexpensively.”).

^[72] Buckley v. Valeo, 424 U.S. 1, 66–67 (1976).

^[73] Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).

^[74] The Court consolidated cases brought by the Americans for Prosperity Foundation (AFP), a nonprofit organization, and by the Thomas More Law Center (Law Center), a conservative religious advocacy group. The AFP was founded by Charles and David Koch, and it has operated to promote conservative causes through donations from extremely wealthy donors. Alexander Hertel-Fernandez et al., How the Koch Brothers Built the Most Powerful Rightwing Group You’ve Never Heard Of, Guardian (Sept. 26, 2018). In this article, I will refer to the plaintiffs collectively as AFP, except where their arguments and claims differ.

^[75] NAACP v. Alabama, 357 U.S. 449 (1958).

^[76] Id. at 462.

^[77] Id.

^[78] Id. at 463.

^[79] Shelton v. Tucker, 364 U.S. 479 (1960). The vote in this case was 5–4.

^[80] Id. at 485–86.

^[81] Id. at 488 (emphasis added).

^[82] Id. at 490.

^[83] See generally Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

^[84] Buckley v. Valeo, 424 U.S. 1, 66–67 (1976).

^[85] Id. at 62–63.

^[86] Id. at 64. Though the Court cited to NAACP v. Alabama (among other cases) for this proposition, the phrase “exacting scrutiny” does not appear in that case. Id.

^[87] Id.

^[88] Id. at 66–68.

^[89] Id. at 68.

^[90] Doe v. Reed, 561 U.S. 186 (2010).

^[91] Id. at 193.

^[92] Interestingly, the majority treated the issue not as a freedom-of-association claim, but as an issue of compelled speech, concluding that signing a petition is an expressive act. Id. at 195.

^[93] Id. at 196.

^[94] Id. (citation omitted).

^[95] Id. at 197.

^[96] Id. at 199–200.

^[97] Id. at 200 (citations and internal quotation remarks omitted).

^[98] Id. at 200–01.

^[99] Id. at 201–02.

^[100] Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2371, 2381 (2021).

^[101] Id.

^[102] Id.

^[103] Id.

^[104] Id. at 2382.

^[105] Id. at 2382–83.

^[106] Id. at 2383 (quoting Doe v. Reed, 561 U.S. 186, 196 (2010)).

^[107] Id.

^[108] Id.

^[109] Id.

^[110] Id.

^[111] Id.

^[112] Id. (emphasis added).

^[113] Id. at 2384.

^[114] Id.

^[115] Id. at 2385.

^[116] Id. at 2385–86.

^[117] Id. at 2386.

^[118] Id. at 2387 (citation omitted).

^[119] Id.

^[120] Id. at 2388–89.

^[121] Id. at 2390 (Thomas, J., concurring in part and concurring in the judgment).

^[122] Id.

^[123] Id. at 2390–91.

^[124] Id. at 2391 (Alito, J., concurring in part and concurring in the judgment).

^[125] Id.

^[126] Id. at 2392.

^[127] Id. at 2394 (Sotomayor, J., dissenting) (emphasis added).

^[128] Id.

^[129] Id. at 2393.

^[130] Id. at 2395.

^[131] Id. at 2396.

^[132] Id. at 2400 (citing Doe v. Reed, 561 U.S. 186, 201 (2010)).

^[133] Id.

^[134] Id.

^[135] Id. at 2397.

^[136] Id.

^[137] Id.

^[138] Id. at 2398.

^[139] Id.

^[140] Id. at 2403.

^[141] Id.

^[142] Id. at 2403.

^[143] Id. at 2405.

^[144] See generally Mark Tushnet, Justice Breyer and the Partial De-Doctrinalization of Free Speech Law, 128 Harv. L. Rev. 508 (2014).

^[145] Though Catherine Ross has argued that the decision left too many questions unanswered, this may have been precisely what the Court wanted, preferring the doctrine to be sorted out in the lower courts based on the many different student speech scenarios that might arise. See Catherine J. Ross, One “Vulgar” Cheerleader Vindicated – But Other Students May Still Face Discipline for Off-Campus Speech, First Amendment Watch (July 6, 2021).

^[146] Mahanoy Area Sch. Dist. V. B.L., 141 S. Ct. 2038, 2046 (2021).

^[147] AFP, 141 S. Ct. at 2383.

^[148] Id. at 2383–84.

^[149] Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

^[150] United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000).

^[151] Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

^[152] Id. at 798.

^[153] Id. at 799.

^[154] McCullen v. Coakley, 573 U.S. 464, 495 (2014) (emphasis added).

^[155] Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2386 (2021).

^[156] Id.

^[157] Id. at 2390 (Thomas, J., concurring in part and concurring in the judgment).

^[158] Id. at 2392 (Alito, J., concurring in part and concurring in the judgment).

^[159] Id. at 2394 (Sotomayor, J., dissenting).

^[160] Id. at 2383.

^[161] Id. at 2393 (Sotomayor, J., dissenting).

^[162] Monica Anderson, A Majority of Teens Have Experienced Some Form of Cyberbullying, Pew Research Ctr., (Sept. 27, 2018).

^[163] On the origins and definition of cancel culture, see Danielle Kurtzleben, When Republicans Attack ‘Cancel Culture,’ What Does It Mean? NPR (Feb. 10, 2021) (quoting a linguistics professor as saying that “‘cancel’ refers to a pretty unremarkable concept . . . . It is used to refer to a cultural boycott.’”).

^[164] See, e.g., Idaho Code Ann. § 33–138 (West 2021). See also Adrian Florido, Teachers Say Laws Banning Critical Race Theory Are Putting a Chill on Their Lessons, NPR (May 28, 2021).

^[165] Strossen, supra note 6, at 16–17 (reporting polling data showing that while people favor free speech in the abstract, many also support censorship of particularly controversial views); see also Nat Hentoff, Free Speech for Me – But Not for Thee: How the American Left and Right Relentlessly Censor Each Other (1992).

^[166] Mahanoy Area School District v. B.L. Case Page, SCOTUSBlog (last visited Sept. 27, 2021). Not surprisingly, a number of interest groups representing school boards and school administrators filed briefs supporting the school district. Multiple government entities, including the United States, 22 states and the District of Columbia also supported the school, whereas nine States filed an amicus on behalf of Levy. The majority of voters in all nine states that supported Levy voted for Donald Trump in the 2020 Presidential election, while voters in 19 of the 22 states supporting the school district voted for Joe Biden. Two exceptions were Iowa and North Carolina. Maine also joined these states’ amicus brief but split its electoral votes between Trump and Biden. Different groups of academics filed amicus briefs in support of both sides. Finally, the sole amicus brief filed in support of neither party was from the conservative American Center for Law and Justice.

^[167] In an admittedly imprecise methodology, I classified groups as conservative or progressive depending on their historical reputations and the descriptions cited in the Interests of Amici sections of their briefs. This process is likely imperfect, but I believe the labels are pretty accurate.

^[168]About FIRE, FIRE, (last visited Sept. 27, 2021).

^[169] Brief of Advancement Project, Juvenile Law Center, and 38 Other Organizations as Amici Curiae in Support of Respondent, Mahanoy Area Sch. Dist. v. B.L. 141 S. Ct. 2038 (2021) (No. 20–255).

^[170] Id. at 2 (citation omitted).

^[171] Id.

^[172] Brief of Alliance Defending Freedom and Christian Legal Society as Amici Curiae in Support of Respondents, Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021) (No. 20–255).

^[173] Id. at 3–6.

^[174] Id. at 31.

^[175] Ian Millhiser, The Supreme Court Just Made Citizens United Even Worse, Vox (July 1, 2021).

^[176] Joseph Zeballos-Roig & Walt Hickey, Conservatives Absolutely Hate It When People Boycott Businesses Over Politics, but 67% of Liberals Think It’s Fair Game, Business Insider (Aug. 30, 2019).

^[177] Gabby Orr & Meridith McGraw, Republicans Want to Make ‘Woke’ Corporations Pay—Literally, Politico (Apr. 5, 2021).

^[178] See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

^[179] Millhiser, supra note 175.

^[180] Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383 (2021).

^[181] Id. at 2388.

^[182] Âmericans for Prosperity Foundation v. Bonta Case Page, SCOTUSBlog (last visited Sept. 27, 2021).

^[183] NAACP v. Alabama, 357 U.S. 449 (1958).

^[184] Brief of Amicus Curiae Council on American-Islamic Relations in Support of Petitioner, Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021) (No. 19-251 & 19-255).

^[185] Id. at 2.

^[186] Id.

^[187] Brief of Amici Curiae the American Civil Liberties Union, Inc., American Civil Liberties Union Foundation, Inc., NAACP Legal Defense and Educational Fund, Inc., Knight First Amendment Institute at Columbia University, Human Rights Campaign, and Pen American Center, Inc., in Support of Petitioners, Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021) (Nos. 19-251 & 19-255).

^[188] Id. at 7.

^[189] Id.

^[190] Id. at 15.

^[191] Id. at 12–13 (quoting Doe v. Reed, 561 U.S. 186, 196 (2010)).

^[192] See, e.g., G. Sidney Buchanan, A Very Rational Court, 30 Hous. L. Rev. 1509, 1548–49 (1993); David S. Day, The End of the Public Forum Doctrine, 78 Iowa L. Rev. 143, 149 (1992).

^[193] McCullen v. Coakley, 573 U.S. 464, 495 (2014).

^[194] McCraw v. City of Oklahoma City, 973 F.3d 1057, 1073 (10th Cir. 2020), cert. denied, 141 S. Ct. 1738 (2021).

^[195] iMatter Utah v. Njord, 774 F.3d 1258, 1266 (10th Cir. 2014).

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