At Law & Liberty, Luke C. Sheahan (Duquesne University – Political Science): Freedom to Speak or Freedom of Assembly? From the introduction:
Last month, the Supreme Court decided Americans for Prosperity Foundation v. Bonta, the latest freedom of association case. While Chief Justice Roberts’ opinion for the Court concludes rightly that states cannot require charities to submit donor information to the government, it misses an opportunity to ground that freedom more firmly in the text and history of the First Amendment. As such, the reasoning of the case is a disappointment, although there are indications that the Court is headed in a better direction in the way it handles freedom of association cases.
The state of California required organizations to disclose the names and addresses of major donors. Petitioners refused to submit the appropriate forms without redacting their donors’ names. This did not present a problem until 2010, when the California Attorney General’s office stepped up its enforcement effort and fined the charities for violation of the disclosure requirement. Petitioners filed suit arguing that the requirement to submit major donor information was a violation of their First Amendment rights. California argued that having charities’ major donors on file helps the office when it investigates misconduct. The District Court granted an injunction against the state enforcement of the disclosure requirement and the Ninth Circuit Court of Appeals reversed and remanded, directing the District Court to reject Petitioners’ facial challenge. After a back and forth, the Supreme Court granted cert and reversed the Ninth Circuit, finding that the donor disclosure requirement was facially unconstitutional.
The Court’s opinion, though, presents two disappointments in its reasoning. First, the Court ruled on this case as a freedom of association case, rather than a freedom of assembly case. This matters because freedom of association appears nowhere in the First Amendment, whereas freedom of assembly has its own clause. Ruling on assembly would have grounded the right in the text of the First Amendment. This move was entirely predictable, given that the Court hasn’t ruled on the Assembly Clause in decades, but disappointing nonetheless.
And from further on:
This move by the Court [in NAACP v. Alabama, as reaffirmed in Bonta] to articulate a separate, non-textual right, was unfortunate. The Court had rendered the Assembly Clause moot through a series of complicated jurisprudential and historical errors, which it failed to correct. As John Inazu argues in Liberty’s Refuge, freedom of assembly is in the text of the First Amendment and its history and jurisprudence indicate that it provides protection for groups like the NAACP by providing a broad right of association. This right was essential to religious liberty, and it was appealed to as early as the 1790s in defense of Democratic-Republican groups, as Justice Thomas noted in his concurrence, citing the Becket Fund’s amicus brief.
Agreed. Revive the free assembly clause! (Not sure what it means though).
Posted at 6:00 AM