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Privacy important to a free society by TRAVIS STORY, BRIAN KELSEY AND DANIEL SUHR SPECIAL TO THE DEMOCRAT-GAZETTE | October 22, 2021 at 2:50 a.m.

A Sept. 9 Democrat-Gazette headline read, "Monument group will name donors." Nothing could be further from the truth.

In a free society, privacy is for the people, and transparency is for the government. That fundamental foundation of America's democratic order is built into our Constitution because privacy is necessary for our other rights and liberties to have the breathing space they need to survive.

The United States Supreme Court vindicated these principles this summer in an important decision called Americans for Prosperity Foundation v. Bonta. There, the court reiterated that the government must have a really good reason to demand that private nonprofit organizations turn over membership or donor lists.

Mere curiosity or the convenience of government bureaucrats is not enough to justify an invasion of the right to private association. It's just not the government's business whether you donate to Planned Parenthood, Right to Life, your local PBS station, or your church.

In 1958 the Supreme Court recognized that allowing the government to probe membership lists was opening the door to harassment, violence, or worse. That's why the court denied the NAACP membership list to the state of Alabama.

In Americans for Prosperity Foundation, the court recognized that today we live in a cancel culture where people are targeted on social media, harassed in public, and even lose their livelihoods because their beliefs are disclosed. The ruling came in for an early test recently in an Arkansas courtroom.

The Satanic Temple and other atheist activists have sued in federal court in Little Rock to take down the Ten Commandments monument on the Arkansas Capitol grounds.

While developing the evidence for their case, the atheists demanded to know which citizens had donated to the nonprofit foundation which funded construction of the monument.

Our client, the American History and Heritage Foundation, delivered the names of hundreds of public donors who gave mostly small amounts of $25 or $50 through a GoFundMe website. But the foundation held back several dozen names of people who had requested anonymity when they gave through the website.

The atheists' lawyers demanded to see the anonymous names as well. They asked a judge to hold the foundation's president in contempt of court for refusing to hand them over, which would subject him to fines and even jail time for protecting the privacy of donors.

Thankfully, the Constitution is a bulwark for citizens in this situation. Our law firm, Liberty Justice Center, filed briefs with the court arguing vigorously that the Americans for Prosperity Foundation decision protected the privacy of these donors, none of whom gave more than $1,000.

Under this pressure the atheists' attorneys backed down. They recently informed the court that they were satisfied with a mere number of how many anonymous donors were pastors. And the foundation was able to keep its pledge to protect the privacy of its supporters.

That is a major win not only for our client, but for the First Amendment. Now, all Arkansans can support the causes they believe in without fear of exposure or retribution. Monumentally, groups will not name donors.

Travis Story is a Fayetteville attorney. Brian Kelsey and Daniel Suhr are managing attorneys at the Liberty Justice Center.

Print Headline: Breathing space


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