Why we’re suing the state to protect free speech

The following op-ed was published this past weekend in the Salt Lake Tribune.

Free speech and free association are among our most fundamental and important rights. Unfortunately, the Utah Legislature reactively passed legislation that substantially jeopardizes them. The organizations we represent—the Utah Taxpayers Association and the Libertas Institute—filed a lawsuit today in an effort to have that law declared unconstitutional.

House Bill 43, passed in the 2013 legislative session, forces educational organizations to abide by reporting requirements similar to those for candidates and PACs, compelling detailed disclosure of donors for publication in an online database. The bill was passed in response to a political consultant’s seemingly illegal use of non-profit organizations to attack Representative Brad Daw while hiding the source of the campaign’s donors: the payday lending industry which Representative Daw had attempted to regulate.

While the Legislature may have been well intentioned in passing HB 43 in an attempt to halt situations similar to what happened to Representative Daw, the fix turned out to be a situation of taking a sledgehammer to an issue where a scalpel was needed. While it makes sense to require disclosure from organizations whose primary or sole purpose is political—as they directly affect government processes and outcomes—the bill expanded the reporting requirements to include organizations whose political advocacy is infrequent and, more often than not, focused on advocacy and education.

That’s why HB 43 poses a problem—organizations such as ours engage in a number of public interest activities, such as holding public forums, publishing educational materials, and conducting original research. This is our primary purpose; by law, political advocacy on our part can be and is only a limited aspect of our overall effort.

Now imagine our donors, who have no interest in supporting our lobbying efforts. Mr. Smith might give $10,000 towards our general operations as a supporter of an aspect of our work, and neither he nor we intend to use that money for a political purpose. Nevertheless, under current Utah law, should our organizations spend more than $750 in a given year on any unrelated political advocacy, we must also disclose Mr. Smith’s identity and personal information.

As you might imagine, this law chills speech about government—it forces our organizations to remain silent in order to protect the identity and wishes of our donors who support our non-political work. The United States Supreme Court has recognized that the First Amendment generally protects the anonymity of contributors to nonprofit educational organizations lest an individual be subject to retaliation for supporting an organization that works on a controversial or unpopular topic. Utah’s law violates that position—and thus the Constitution—by attempting to force us to identify our contributors.

Let’s talk specifics. Both of our organizations contemplated educating the public in the campaign dealing with the increase in the sales tax under Proposition 1. We wanted to educate voters on the issue, but couldn’t, since doing so would trigger HB 43’s reporting requirement and force us to publicly disclose our donors’ personal information. These individuals contributed for many other reasons and issues, and some of them may even disagree with what we would have said concerning Proposition 1. As a result, we were effectively compelled to remain silent.

If a similar law had existed in California in 2008, The Church of Jesus Christ of Latter-day Saints would have been required to disclose the address and donation amounts of its every tithe payer worldwide, merely because it had made some limited, independent political expenditures that exceeded $750 in an effort to support passage of Proposition 8.

Suppose you chose to affiliate with an organization that wants to support medical marijuana, relax Utah’s liquor laws, oppose a bond being proposed in your city, or engage on any other controversial issue important to you. No matter your ideology or political party, your right to associate with groups of your choosing, and to support any part of their work, should not place you at risk of forced disclosure and potential retaliation for positions those groups have taken which you may not share.

Education is not politics, and educational organizations should not be treated the same as purely political organizations. Political consultants who violate IRS regulations and use non-profits engaged primarily in political activity to hide the sources of campaign donors are already prosecutable under state and federal law for fraud and violations of the tax laws. Future offenses such as these can be narrowly targeted and vigorously prosecuted.

These goals can—and should—be achieved without resorting to compulsory registration and disclosure by any and all organizations that engage in a small amount of spending on a political issue. Common sense and the Constitution both dictate that Utah’s law should be overturned in order to protect each Utahn’s right to free speech and free association.