Arizona Supreme Court Agrees To Hear Political Donor Privacy Case

This week the Arizona Supreme Court granted review of a critical 1st Amendment lawsuit, Center for AZ v. AZ Secretary of State. The case, brought by the Goldwater Institute deals with Proposition 211, which established disclosure requirements on private organizations and donors that opponents believe could lead to harassment, censorship, and chill free speech.

It’s the Goldwater Institute’s thirteenth time defending constitutional rights before the Arizona Supreme Court.

The Arizona Free Enterprise Club is a plaintiff in the lawsuit.

The Arizona Supreme Court granted review on the following issues:

“We are thankful that the Arizona Supreme Court accepted review of this vital case for our First Amendment liberties,” said Scot Mussi, President of the Arizona Free Enterprise Club. “Both the U.S. Constitution and the Arizona Constitution guarantee citizens the right to speak freely, which includes the right to not be forced to speak. Prop 211 not only violates this right for donors by silencing them from supporting causes they believe in but impairs the speech of nonprofits like ours as well. We are hopeful that the Arizona Supreme Court will rule in favor of the Constitution after considering the merits of the case.”

The Goldwater Institute argues that Proposition 211 strips donors and nonprofits of their privacy rights if they support or oppose ballot initiatives. Under that law, donors to organizations that spend money on initiative campaigns must have their names, addresses, phone numbers, and employment information placed on a publicly accessible government list—thereby inviting retaliation, ostracism, and even violence.

“This is a very exciting development,” said Goldwater Senior Attorney Scott Day Freeman. “There are few rights more precious to Arizonans than their rights to free speech and to the ballot initiative process. The anti-privacy law undermines these freedoms by telling people that if they dare to support a political position, they have to give up their confidentiality and potentially become a target for retaliation and even violence.”

The Goldwater Institute challenged the law on behalf of the Center for Arizona Policy and the Arizona Free Enterprise Club, arguing that Arizona’s constitution forbids the state from stripping people of their confidentiality as the price of supporting or opposing a political view. The state constitution, after all, provides stronger protections for freedom of speech and privacy than does the federal constitution—promising both that “every person may freely speak, write, and publish on all subjects,” and that “no person shall be disturbed in his private affairs.” (A separate lawsuit challenging the initiative on behalf of the state legislature is also pending before the court.)

A lower court rejected Goldwater’s arguments, holding that depriving donors of their right to privacy serves the government’s interest in “having an informed electorate,” and that if donors don’t want to lose their confidentiality, they can “opt out of contributing to campaign media spending.”

“That’s just not true,” says Andrew Gould, a former Arizona Supreme Court Justice who now practices law at Holtzman Vogel and also represents the plaintiffs in the Goldwater Institute’s case. “Even under the law’s ‘opt-out’ provisions, some donors’ information must still be made public, and donors don’t really have a way of controlling how an organization spends donations, which means they can’t really control whether their information is made public.”

The case raises claims under the Arizona Constitution’s speech and privacy protections, which are more protective than those of the federal Constitution. “Our state constitution provides stronger security for individual rights than the U.S. Constitution does,” says Gould. “The authors of the state constitution intended to protect the right to donate to ballot initiative campaigns and the right not to have one’s ‘private affairs’ made public by the government. This law violates both those promises and says that if you donate to a nonprofit group that supports or opposes a ballot initiative, the government’s going to paint a target on your back.”

Goldwater points to a number of incidents in recent years in which donors to political campaigns or to politically active nonprofits have suffered threats, vandalism, and even violence in retaliation. Donors to California’s anti-same-sex marriage initiative in 2008 experienced property destruction and even physical assault after their names and addresses were made public. And in 2020, a group of nonprofits sued the state of California when it published some 2,000 documents listing donors’ personal identifying information—leading to a spate of violence and harassment.

“Back in the 1950s, southern states tried to shut down civil rights groups by forcing them to disclose the identities of their donors,” explains Freeman. “The U.S. Supreme Court put a stop to that because it was obvious that the result would be to scare people into keeping their mouths shut. The freedom of speech and privacy includes the right to contribute to a political organization or a ballot campaign without fear of having your name placed on a government list.”

The Arizona justices have ordered a second round of briefing in the case, to be completed by May 27. They have not yet set a date for a hearing.

“We look forward to the justices vindicating the right of all Arizonans to free speech and privacy,” says Gould. “Nothing could be more important to our constitutional democracy.”