Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.
The Supreme Court has recognized “the vital relationship between freedom to associate and privacy in one’s associations.” 1 In some circumstances, government-compelled disclosure of an individual’s affiliations can expose that individual to harm in the form of threats, harassment, or economic reprisals.2 This potential exposure may dissuade individuals from joining together for the purpose of collective advocacy, thus chilling protected speech and association.3 Accordingly, the Supreme Court has barred the government from compelling organizations to reveal their members, or individuals to reveal their memberships, in some circumstances.4
At the same time, the Court has not recognized an absolute right to privacy of one’s associations, often weighing the government’s interests in disclosure against the likelihood of harm resulting from the exposure.5 In some cases, this analysis took the form of a balancing test, with the government’s interests presumptively tipping the scales.6 In other cases, the Court applied a form of heightened scrutiny under which the government bore the burden of demonstrating that its interests in disclosure were sufficiently important to justify the intrusion into associational rights.7
Whether disclosure will be public also appears to be a factor in the Court’s analysis. For example, in Nixon v. Administrator of General Services, former President Richard M. Nixon challenged a federal law directing the Administrator of General Services to take custody of President Nixon’s papers and tape recordings and issue regulations governing the archival screening of the materials and public access to archived materials.8 The case involved several constitutional claims,9 one of which was that the screening process violated the President’s “rights of associational privacy and political speech.” 10 The Supreme Court acknowledged that “involvement in partisan politics is closely protected by the First Amendment” and that compelled disclosure “can seriously infringe on privacy of association and belief,” but it ultimately concluded that the President’s First Amendment claim was “clearly outweighed by the important governmental interests promoted by” the federal law.11
- NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).
- Id. at 462–63.
- E.g., Alabama ex rel. Patterson, 357 U.S. 449.
- E.g., Buckley v. Valeo, 424 U.S. 1, 65–66 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81.
- E.g., Barenblatt v. United States, 360 U.S. 109, 126, 134 (1959).
- E.g., Ams. for Prosperity Found. v. Bonta, No. 19-251, slip op. at 9 (U.S. July 1, 2021).
- 433 U.S. 425, 429 (1977).
- See ArtII.S3.4.1 Overview of Executive Privilege and ArtI.S9.C3.3.1 Overview of Ex Post Facto Laws.
- Nixon, 433 U.S. at 466.
- Id. at 452, 467–68. The Court appeared to suggest that the law satisfied “a compelling public need that cannot be met in a less restrictive way” —a standard akin to strict scrutiny. Id. at 467.