Long time readers know I am a member of the cult of synchronicity, constantly looking for those connections between two or more seemingly unrelated events. Sometimes the chasm between the two are decades apart. Sometimes the venues fall within vastly different arenas. However, in today’s example, there is little space between time or venue. Though the subject matter differs, the temporal and geographic circumstances are the same, the current session of the U.S. Supreme Court.
One of the topics which triggered this blog is tied to two cases involving a California law which requires charities to disclose their largest donors (Americans for Prosperty v. Bonta and Thomas More Law Center v. Bonta). NOTE: The defendant Rob Bonta is the California attorney general. The original concern was the state’s failure to protect certain confidential information about donors, a legitimate issue which has since been resolved.
So why would two conservative entities continue to pursue the case and appeal the decision by the U.S. Court of Appeals for the 9th Circuit which upheld the California law. Because there is an increasingly blurred line between charitable entities, 501(c)(3) under the tax code, and political organizations, 501(c)(4). Take one of the plaintiffs, Americans for Prosperity, as an example. This 501(c)(4) entity was created by the Koch brothers and has been a major player in supporting Republican candidates at all levels of government, influencing supreme court appointments and championing conservative causes. Under current federal law, it is not required to report its major donors.
During Monday’s hearing, questioning by conservative justices suggested they see the California law as a slippery slope which could violate a donor’s right to free speech and freedom of association if the California statute were applied to 501(3)(4) corporations. Justice Clarence Thomas made this point during oral arguments.
In this era, there seems to be quite a bit of loose accusations about organizations, for example, an organization that had certain views might be accused of being a white supremacist organization or racist or homophobic, something like that, and, as a result, become quite controversial.
In his latest attempt at false equivalencies, Justice Thomas skips over the fact the last time the Court addressed this issue was its decision in NAACP v. Patterson (1958) when the state of Alabama issued a subpoena for the NAACP’s membership list. The NAACP argued publication of such information could endanger the safety of those who supported the civil rights movement, including desegregation of public facilities, opposed by the governor, state legislature and the state supreme court. Keep in mind the case was brought less than three years after Emmett Till was lynched in neighboring Mississippi.
NOTE: Justice Amy Coney Barrett participated in the oral arguments on Monday despite a request by three Democratic members of Congress she recuse herself since Americans for Prosperity had spent over one million dollars on an ad campaign supporting her confirmation. To date, she has not responded to their letter of request.
Which brings me to the second case Mahoney Area School District v. B. L., which will be argued this Wednesday. The case centers on a then 14 year-old student who, upon being passed over for promotion to the varsity cheerleading squad, posted a series of F-bombs on Snapchat directed at her school, the softball program, cheerleading and everything in general. The rant was posted after school hours while she was at a convenience store.
To make their case, the school district draws on the precedent established in Morse v. Frederick (2007) in which the Court ruled an Alaska high school could prohibit students from holding up a sign which read “Bong Hits 4 Jesus” even thought they were off-campus because it promoted drug use in violation of the school’s anti-drug policy. (Not to mention, appropriating the Savior’s name to encourage doobie dipping probably struck the school administration as sacrilegious.) But again, there is a false equivalency. The occasion on which the students displayed the banner, although off-campus, was a sanctioned school event. Students were permitted to leave campus during school hours to view the Olympic torch relay on its way to Salt Lake City. And therefore, the school had the right to oversee whether student behavior under that grant of permission was consistent with on-campus policy.
What do these two cases have in common? Both beg for common sense solutions, instead of convoluted legal parsing and unsubstantiated speculative impacts. Remember, ever court decision often provides additional fodder for the next related case. Of course, none of this will stop me from making convoluted arguments based on legal precedence to prove my point about the need for common sense.
Let’s start with the latter case. The standard by which many student freedom of expression cases have been decided was established in Tinker v. Des Moines Independent School District (1969) which allowed school authorities to regulate speech if it resulted in “substantial disruption.” In the specifics of that case, the Court ruled punishment for wearing black arm bands protesting the war in Vietnam was unjustified. No students were threatened and there was no interruption of scheduled classes.
Did the Mahoney School District really thing Brandi Levy (previously identified only as B.L as she was a minor at the time) was causing “substantial disruption” by telling the world how pissed off she was at having to spend another year on the junior varsity cheerleading squad? Likewise, does Ms. Levi think making this into a federal case serves her well? Any notoriety, which would have otherwise vanished from Snapchat in 24 hours, is now chronicled in every major newspaper and on-line legal search sites.
While I believe the Court should and will protect her right of expression, any potential employer also has the right to question whether they want to hire someone who reacts to disappointment in such manner. And forgive me for thinking this story line is more appropriate for a “made for TV movie” than the nation’s highest court.
I also believe the 6-3 conservative court will decide in favor of Americans for Prosperity without making the connection with Citizens United v FEC (2010). Justice Anthony Kennedy, writing the majority opinion in Citizens United, assumed, with the advent of digital technology, there would be full and instant disclosure of corporate contributions to political campaigns and causes. He now admits he was wrong on this point. Common sense tells us, if Americans for Prosperity is spending millions of dollars in support of a candidate or cause, we have a right to know who those “Americans” are. Is it one or two people with deep pockets claiming to represent the people? Common sense also suggests we have a right to know who underwrote the rally on January 6th sponsored by “Women for America First.” And who do they actually represent? NOTE: The number of newly established 501(c)(4) “social welfare” entities doubled in the year following the Citizens United decision.
In the remake of Gran Torino (2008), Clint Eastwood plays Chief Justice John Roberts who, invoking a Walt Kowalski quote, tells plaintiffs like Americans for Progress and Brandi Levy to quit wasting the court’s time and figure it out themselves. “Take these three items, some WD-40, a vise grip, and a roll of duct tape. Any man worth his salt can fix almost any problem with this stuff alone.”
For what it’s worth.