One Threat To Freedom Of Opinion Down, In California. Many More To Go.

At Overlawyered, I’ve repeatedly covered California Attorney General Kamala Harris’s audacious demand for the donor lists of nonprofits that carry on activities in California, a step likely to lead to both private and public retaliation against individuals and groups revealed to have donated to unpopular or controversial causes. So this is good news: a federal district judge in California has ruled that her crusade violates the Constitutional rights of one such group, Americans for Prosperity Foundation.

As the WSJ notes in an editorial, U.S. District Judge Manuel Real “declared her disclosure requirement an unconstitutional burden on First Amendment rights,” finding that there was scant evidence the disclosures were necessary to prevent charitable fraud, and that, contrary to assurances, her office had “systematically failed to maintain the confidentiality” of nonprofits’ donor lists, some 1,400 of which Harris’s office had in fact published online. As for retaliation against donors, “although the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from [the civil rights] era,” he wrote, “this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

An ally of the plaintiff’s bar and unions as well as a candidate for U.S. Senate, Harris recently surfaced as a key player in the alliance of state attorneys general intent on using criminal investigatory powers to probe so-called climate denial at non-profit research and advocacy groups as well as at energy companies like ExxonMobil. That makes at least two episodes in which Harris personally has signaled interest in novel, aggressive steps to pry open the internal workings of private advocacy organizations that take positions opposed to hers. 

It’s hard not to see an ongoing pattern here. Aside from the climate subpoenas, which are widely predicted to expand beyond the Competitive Enterprise Institute to other advocacy groups, powerful politicians have been demanding that the Securities and Exchange Commission use its regulatory powers to turn up pressure against advocacy by shareholder-held businesses, and in particular to investigate what they say on issues of regulation and policy – invariably, when they take the opposite side from the politicians’ own views. Earlier this month I covered such a ploy by Sen. Elizabeth Warren (D-Mass.), and New York City official Letitia James recently tried something similar with Sturm Ruger, demanding that the SEC punish the gunmaker for not being more cooperative with the demands of various gun control advocates. 

The pattern here is that the formidable power of law enforcement and regulatory discretion is being openly enlisted to identify, flush out, and punish what remains of dissenting opinion in the business community itself as well as among uncooperative nonprofits. Recall that in 2010 Health and Human Services Secretary Kathleen Sebelius vowed “zero tolerance” for health insurers spreading supposed “misinformation” about ObamaCare, in particular by blaming its provisions for rate increases, no small threat from an official wielding immense regulatory discretion over those insurers.

The WSJ’s Kim Strassel had a great column the other day asking why so few business leaders are willing to speak out against coercive and destructive economic measures. Given the amount of effort that goes into identifying and retaliating against dissenting pro-capitalism opinion these days, should we really be surprised?

[adapted and expanded from Overlawyered]