NAACP v. Alabama and False Symmetry in the Disclosure Debate

Abstract:     
In the wake of Citizens United v. FEC, the legal fight over campaign finance has largely shifted from direct limits on expenditures to disclosure requirements. Opponents of disclosure requirements frequently invoke NAACP v. Alabama ex rel. Patterson, in which the Supreme Court first addressed the role of anonymity in the context of First Amendment protections. From their perspective, NAACP v. Alabama stands for a neutral proposition that, because compelled disclosure of a speaker’s identity may deter that person (or entity) from speaking, such requirements should generally be viewed with suspicion (the “anti-chilling” interpretation). Yet NAACP v. Alabama can also be understood from a perspective that acknowledges its historical context. Viewed from this framework (the “anti-suppression” interpretation), recent efforts to deploy NAACP v. Alabama against contemporary disclosure requirements in order to protect powerful corporate donors run counter to the values that originally animated NAACP v. Alabama. This debate mirrors one of the more interesting legal controversies from the past few decades, namely the struggle over the meaning of the Equal Protection Clause and the Court’s landmark school desegregation case, Brown v. Board of Education. In the Equal Protection context, however, courts have generally operated from the principle that racial classifications are inherently odious, and that, regardless of the context, heightened scrutiny of race-based decision-making is warranted. In contrast, with campaign disclosure rules, courts are agnostic or even skeptical of the inherent value of anonymous speech and therefore apply a more context-dependent analysis in determining whether disclosure requirements are appropriate in a particular case. The result is that courts apply a context-neutral “anti-classification” principle in the school integration context, but a context-dependent “anti-suppression” principle in the disclosure context.

Number of Pages in PDF File: 38

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