ACLU-NJ Challenges Unconstitutional Donor Disclosure Law That Threatens Free Speech

The suit, filed in federal district court, warns that the overbroad law infringes upon freedom of expression and freedom of association

Affiliate: ACLU of New Jersey
September 11, 2019 11:45 am

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The American Civil Liberties Union of New Jersey and the national ACLU today filed a lawsuit challenging the constitutionality of a law requiring all social welfare organizations to disclose personal information about their donors and details about nonpartisan voter education and advocacy activities. The lawsuit calls for the court to invalidate provisions of S150, a bill that created vague and overbroad disclosure requirements for organizations that engage in public advocacy work, including even those that do not engage in electoral politics.

The ACLU’s lawsuit (PDF), filed in the U.S. District Court for the District of New Jersey, argues that mandatory disclosure of donors’ names and other personal information undermines New Jerseyans’ right to exercise free speech and free association – two fundamental freedoms afforded and protected by the First Amendment.

“This law discourages people from donating to non-profit organizations that advocate for causes that they believe make people’s lives better,” said ACLU-NJ Legal Director Jeanne LoCicero. “The law sweeps up hundreds of advocacy organizations, including those that don’t take sides in elections, and even some that don’t directly engage in lobbying the government.”

The Legislature passed S150 on June 10. While signing the bill into law, Gov. Phil Murphy acknowledged both the potential constitutional violations and the Legislature’s promise to address those violations through future legislation. No such legislation has materialized as of the filing date.

The legislation requires public disclosure of the name, address, occupation, and employer of any donor who contributes $10,000 or more to certain social welfare organizations, regardless of whether the organization has played any role in electoral politics.

“All nonprofits should be able to speak out on urgent issues of the day without a fear of being subject to disclosure rules that go beyond the bounds of what the Constitution allows,” said ACLU General Counsel Terence Dougherty.

Organizations that fall under the law must publicly release the reasons for any spending above $3,000. The law also limits organizations’ own governance by prohibiting public officeholders and political party leaders from having certain roles within advocacy organizations.

“It has been clear for decades that the First Amendment protects the rights of controversial organizations to maintain the privacy of their membership lists,” said Lawrence S. Lustberg, who is representing both organizations pro bono and is Director of the John J. Gibbons Fellowship in Public Interest and Constitutional Law at the law firm Gibbons P.C. “This law places the ACLU and ACLU-NJ in an untenable situation. No organization should be forced to choose between disclosing private donor information, breaking the law by not disclosing, or violating their mission by withdrawing from advocacy.”

“Nonprofit advocacy organizations are uniquely equipped to provide a check on government and to mobilize concerned people who may have no other option for speaking truth to power – and, unfortunately, this law would silence those voices,” said ACLU-NJ Executive Director Amol Sinha. “The law punishes people for participating in collective action and undermines the basic notion of free speech and association.”

The constitutional issues raised by this bill have led varied and ideologically diverse organizations to find common cause. The ACLU-NJ’s lawsuit comes after a similar suit filed by Americans for Prosperity, a libertarian-leaning grassroots organization. That case is also pending in federal district court in New Jersey.

Read the complaint as PDF:

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